I. Summary and Recommendations

The clerk told me a male doctor will conduct the test
[forensic examination] and asked me whether that was ok. I said
“yes.” But other than that, I did not know what they were going to
do. I was so scared and nervous and praying all the time: “God, let this
be over and let me get out of here fast.” I did not even know it was
going to be like a delivery examination [an internal gynecological
examination].

For decades, survivors of sexual violence in India have
endured criminal justice and health care systems that pay scant attention to
their needs and rights. But in December 2009, the Indian
government—spurred by the Indian women’s rights movement, as well
as by children’s and health rights activists—initiated a process to
review and change the laws governing sexual violence, an important first step
toward protecting the rights of survivors of such abuse. Of critical importance
will be ensuring that any new laws or amendments build on good practices from
both inside and outside the country, adhere to international standards and
laws, and bring about changes in a transparent and consultative manner. Changes
in laws alone will not ease the path to justice for survivors of sexual
violence. Once laws and policies have been put in place, the Indian central and
state governments must also ensure that these laws are adequately resourced and
implemented.

Part of this should involve reforming and standardizing the
way that health care providers manage cases of sexual assault. Health providers
have a dual role when it comes to responding to sexual violence. They must provide
therapeutic care to survivors—including addressing their sexual,
reproductive, and mental health problems—and also play a critical role in
the response of the criminal justice system, by collecting forensic evidence
for use during any criminal investigation and prosecution. However, according
to Indian health rights activists who have assisted survivors and studied their
treatment in the health care system, doctors usually prioritize the collection
of forensic evidence, and often insist on filing a police complaint as soon as
survivors approach them for medical care, which can intimidate survivors and
discourage them from pursuing treatment. Health providers often spend little,
if any, time on essential therapeutic care.

There is an urgent need for a holistic policy and program
that directs health providers’ attention to the needs of survivors after
an assault. Services geared toward survivors require structural changes so that
it is easier to register complaints or access services. In the United Kingdom,
the United States, and Canada, crisis intervention centers staffed by
professionals provide integrated services with a special focus on the
therapeutic needs of survivors. Similar centers are necessary in India.

The Finger Test

Sexual violence is, disturbingly, a growing trend in India.
Between 1990 and 2008, reported rapes soared by 112 percent nationwide,
according to the National Crime Records Bureau, while cases of molestation and
sexual harassment also increased between 2001 and 2008 (the latest year for
which data is available). Such figures likely understate the problem. Many
survivors of sexual violence do not report attacks because they fear ridicule
or retribution, as well as assumptions that victims of sexual assault are
“bad,” “loose,” or otherwise responsible for the
attack. Survivors and their families may also be reluctant to subject
themselves to the criminal justice system, which offers no victim and witness
support and protection program, and which may inflict additional trauma.

Not least of the disincentives for reporting abuse is the
prospect of undergoing a forensic examination. Evidence collection techniques
are by no means standardized and are frequently difficult. Too often, survivors
must make grueling trips from one hospital or ward to another, and receive
multiple examinations at each stop. Medical workers frequently collect evidence
inadequately or insensitively, and it may then be lost, poorly stored, or
subject to processing delays, rendering it unusable. At trial, judges often
lack adequate information to interpret the medical evidence.

Indian criminal law does not require corroboration by
forensic evidence to secure a conviction for rape, yet in practice, such
evidence plays a critical role. Lawyers and activists say that the seriousness
with which police investigate a complaint of rape usually depends on the manner
in which a doctor collects and reports forensic evidence, and judges frequently
give this evidence significant weight. A rape survivor who endured considerable
indignity to provide evidence may see the perpetrator walk free if the evidence
was improperly collected, stored, or reported.

This report does not present the whole range of problems
that survivors of sexual violence encounter in their interactions with the
Indian criminal justice and health care systems. Nor does it address all the
problems inherent in collecting forensic evidence. Instead, it discusses the
problems posed by one of the most archaic forensic procedures still in use: the
finger test—a practice where the examining doctor notes the presence or
absence of the hymen and the size and so-called laxity of the vagina of the rape
survivor. The finger test is supposed to assess whether girls and women are
“virgins” or “habituated to sexual intercourse.” Yet it
does none of this.

Contrary to common misconceptions, the hymen is a flexible
membrane that partly covers the vaginal opening and does not seal it like a
door. Hence the notion that there was no rape if there is no
“broken” hymen is false. Conversely, a hymen can have an “old
tear” and its orifice may vary in size for many reasons unrelated to sex,
so examining it provides no evidence for drawing conclusions about
“habituation to sexual intercourse.” Furthermore, the question of
whether a woman has had any previous sexual experience has no bearing on
whether she consented to the sexual act under consideration. And the finger
test itself can result in further trauma to the survivor, whose dignity is
generally ignored. In effect, it is a procedure that without informed consent
would amount to sexual assault.

Unscientific, inhuman, and degrading, the finger test also has
no forensic value, according to forensic and medical experts from India and
outside the country. It is also legally irrelevant: the Indian Supreme Court,
whose decisions are nationally binding, has ruled that finger test results
cannot be used against a rape survivor, and that a survivor’s
“habituation to sexual intercourse” is immaterial to the issue of
consent at trial. Amendments to Indian law have also prohibited cross-examining
survivors about their “general immoral character.” The number of
finger test exams has fallen and courts have become less likely to draw
conclusions about a survivor’s “habituation to sexual
intercourse” as a result of these developments. Yet the finger test is
still pervasive in many hospitals in India, and more needs to be done to reform
India’s approach to sexual violence in general, and to eradicate finger
testing in particular.

At least three leading government hospitals in Mumbai, including
one where more than a thousand rape survivors are examined every year, continue
to conduct the finger test. In 2010, the Delhi and Maharashtra governments
introduced new forensic examination templates for rape survivors, which, among
other things, seek details about the hymenal orifice size of the survivor. And
anecdotal evidence suggests that the practice occurs elsewhere in India.

Since doctors tend to seek blanket consent for the forensic
examination as a whole, and not to mention the finger test specifically, many
survivors have little understanding of what the test entails; what information
is collected for what ends; and the implications of refusing to undergo a
forensic examination or any part of it—including the risk of appearing to
hide information. Nonetheless, findings may be presented in court. Defense
counsel may use the findings of the finger test to shake the morale of
survivors, and challenge or discredit their testimony. In some cases, defense
counsel even use the findings to claim that sexual intercourse was consensual.
Many judges consider the results of the finger test at trial and appellate
stages. In theory, an allegation that a rape survivor is “habituated to
sexual intercourse” is not by itself grounds for an acquittal. But courts
across the country have at times used this as evidence to assert that the rape
survivor had “loose” or “lax” morals.

The common use of the finger test shows that many doctors,
police officers, lawyers, judges, and others do not understand what constitutes
rape, what elements could help establish that rape has occurred, and what facts
are irrelevant to determining whether rape has occurred. It underscores the
pressing need for uniform nationwide guidelines for forensic examinations that
respect survivors’ rights to health, consent and dignity, and for
scientific, relevant and accurate information to be presented in courts, rather
than outdated material gleaned from textbooks or old-fashioned medical
practices. Doctors, police, prosecutors, and judges should all work together to
stop the finger test from being administered, and to standardize evidence
collection to protect the rights of survivors.

India is party to several international treaties that
obligate its government to ensure that all forensic procedures and criminal
justice processes respect survivors’ physical and mental integrity and
dignity. Guidelines issued by the World Health Organization (WHO) for examining
survivors of sexual violence state that forensic examinations must be minimally
invasive and that even a purely clinical procedure such as a bimanual
examination[1]
is rarely medically necessary after sexual assault. In the case of prepubescent
girls and boys who are victims of sexual abuse, the WHO guidelines say that
“most examinations” should be “non-invasive and should not
cause pain,” and that “speculums or anoscopes and digital or
bimanual examinations do not need to be used in child sexual abuse examinations
unless medically indicated.” The guidelines further caution:
“consider a digital rectal examination only if medically indicated, as
the invasive examination may mimic the abuse.”

The Indian government should provide additional information
to doctors, police officers, prosecutors, and judges. The government should
issue uniform guidelines specifying how forensic evidence can be collected in a
manner that respects survivors’ rights, and also what types of forensic
evidence should be collected. In addition, the Indian government should use its
law reform process to prohibit the finger test, as well as the inclusion of
opinions about whether survivors are “habituated to sexual intercourse”,
from all forensic examinations. Yet creating new laws and policies related to
forensic examination is not enough. The Indian central and state governments
must also ensure that they are adequately resourced and implemented.

As an important part of this, the government should conduct
training and sensitization programs to familiarize doctors, police officers,
prosecutors, and judges with the latest legal and scientific methods of
evidence collection that respect survivors’ rights. Hospitals need
multi-disciplinary centers, adequately equipped and staffed with trained and
sensitive personnel, to provide integrated and comprehensive services for
survivors of sexual assault.

To fulfill its obligations, the Indian government can draw
on the experience of other countries, and also build on good domestic examples.
For instance, South Africa provides specialized training for medical students
on how to treat and examine survivors, while the United Kingdom provides
detailed theoretical and on-the-job two-month training for all doctors who
interact with, and examine, survivors of sexual violence. The United States and
Canada also have forensic nurses who specialize in such examinations. In parts
of the United Kingdom, the United States, and Canada, there are also
specialized sexual violence crisis intervention centers equipped and staffed
with trained professionals drawn from various backgrounds and able to provide
integrated services with a special focus on the therapeutic needs of survivors.
Within India, the Mumbai-based nongovernmental organization Centre for Enquiry
Into Health and Allied Themes (CEHAT) has developed a detailed forensic
examination protocol accompanied by an instruction manual, currently used
in two Mumbai hospitals, that explicitly states that the two-finger test
should not be conducted.

Recommendations

To the Indian Central and State Governments:

In order to ensure that the current review processes bring
about concrete change in how the health and criminal justice systems approach
survivors of sexual violence in general, and rape survivors in particular:

Prohibit the finger test and
its variants from all forensic examinations of female survivors, as it is
an unscientific, inhuman, and degrading practice, and

Instruct doctors not to comment on whether they believe
any girl or woman is “habituated to sexual intercourse”.

Instruct all senior police officials to ensure that
police requisition letters for forensic examinations do not ask doctors
to comment on whether a rape survivor is “habituated to sexual
intercourse.”

Communicate to trial and
appellate court judges that finger test results and medical opinions
about whether a survivor is “habituated to sexual
intercourse” are unscientific, degrading, and legally irrelevant,
and should not be presented in court proceedings related to sexual
offences.

Devise special guidelines for
the forensic examination of child survivors of sexual abuse to minimize
invasive procedures. Emphasize that tests that risk mimicking the abuse
should be conducted only when absolutely medically necessary to determine
if injuries need therapeutic intervention. Ensure that any test is only
carried out with the fully informed consent of the child, to the extent
that is possible, and the consent of the child’s parent or guardian,
where appropriate.

Develop, in a transparent
manner and in consultation with Indian women’s, children’s,
and health rights advocates, doctors, and lawyers, a protocol for the
therapeutic treatment and forensic examination of survivors of sexual
violence that adheres to:

The procedural and evidentiary decisions pronounced by
the Indian Supreme Court and international laws.

Standards and ethics issued
by the World Health Organization.

Organize, in consultation with
national and state judicial academies and experts on women’s,
children’s, and health rights, special programs for trial and
appellate court judges on proceedings related to rape and other sexual
offenses, and on the rights of survivors.

Organize, in consultation with
state police academies, judges, and experts on women’s,
children’s, and health rights, special programs for police related
to investigating and prosecuting sexual offenses, and on the rights of
survivors.

Organize, in consultation with
judicial and other officers in charge of prosecution services and experts
on women’s, children’s, and health rights, special programs
for prosecutors on proceedings related to rape and other sexual offenses,
and on the rights of survivors.

Develop, in consultation with
women’s, children’s and health rights experts in India,
multidisciplinary centers in at least one government hospital in every
district of the country (or in an alternative appropriate
population-to-distance norm), staffed with trained personnel and equipped
to provide integrated, comprehensive, gender-sensitive treatment, forensic
examinations, counseling, and rehabilitation for survivors of sexual
violence.

Develop and introduce, in
consultation with lawyers and experts on women’s, children’s,
and health rights, a mandatory gender-sensitive training module for
medical students on treating and examining survivors of sexual
violence.

Form a committee to review,
update, and revise medical jurisprudence textbooks to ensure the inclusion
of the latest positions in Indian law on procedure and evidence related to
sexual violence.

Consult with women’s rights and children’s
rights activists and lawyers to ensure that their concerns regarding
forensic examinations in sexual violence cases are addressed in the final
version of the Perspective Plan for Indian Forensics. Before finalizing
the plan, the government should also study lessons learned from other
jurisdictions about how integrated medical and forensic services are
provided in a gender-sensitive and timely manner.

II. Methodology

This report is based on research that Human Rights Watch
conducted between April 10 and August 10, 2010, in Delhi and Mumbai.

A researcher conducted interviews, both in person and on the
phone, with 44 people, including doctors, health rights activists,
women’s rights activists, prosecutors, other lawyers, judges who have served
in criminal trial courts or on criminal appellate benches, and parents of
survivors of sexual violence, in Mumbai and Delhi. Most of the health rights
activists and doctors interviewed had studied health system responses to sexual
violence and are advocating for a uniform gender-sensitive examination protocol
for rape survivors, along with training for doctors involved in these
examinations. The lawyers Human Rights Watch interviewed included some
recommended by women’s rights and children’s rights activists, who
have extensive experience in the prosecution of rape or child sexual abuse.
Five of the forty-four interviewees were from parts of India outside Mumbai and
Delhi, and were interviewed because they had experience working with survivors
of sexual violence. Three of the interviewees were from countries other than
India, namely South Africa, the United Kingdom, and the United States.

The interviews were conducted in English or Hindi and lasted
between 30 minutes and an hour. Human Rights Watch used pseudonyms where
interviewees wished their identities to be protected.

Due to the difficulties involved in locating survivors
willing to talk about their experiences, Human Rights Watch was able to speak
with only one survivor, who had indicated to her lawyer that she was willing to
talk to the researcher about her forensic examination and deposition to the
police.

Mumbai and Delhi were chosen as investigation sites because
they rank first and second among cities across the country in the number of
registered cases of rape.[2]
In addition, both Delhi city and Maharashtra state (the capital of which is
Mumbai) have recently witnessed developments related to sexual violence. In
June 2010 the Maharashtra state government issued a set of guidelines related
to the forensic examination of rape survivors that reinstate questions about
the hymen and the number of fingers that can be admitted into the hymenal orifice.
Similarly, in early 2010 the office of the Director General of Health Services
in Delhi introduced a template for the forensic examination of rape survivors
at government hospitals that seeks information about the size of the hymenal
orifice and asks doctors to comment on whether the survivor is
“habituated to sexual intercourse.” Many health rights and
women’s rights activists regard these as a setback to women’s
rights.[3]

Mumbai and Delhi have also seen some positive developments
related to the treatment and examination of rape survivors. For example, the
Mumbai-based Center for Enquiry Into Health and Allied Themes (CEHAT), together
with doctors from across the country, has developed a detailed template and
instruction manual for the forensic examination of survivors of sexual
violence. The document clearly indicates to doctors what information is
relevant for such an examination, outlines situations in which it is
appropriate to note injuries to the hymen, and describes how these must be
recorded—directives that show doctors how to conduct examinations in a
manner that respects a survivor’s privacy and dignity. The instruction
manual also explains that the two-finger test is no longer admissible in court,
and that doctors should not use the test to assert findings or render
medico-legal opinions.[4]
In Delhi, the government is also slowly beginning to pay greater attention to
the health needs of and forensic examination protocols for rape survivors: 2009
High Court guidelines, for example, outline what different actors, including
police officers, prosecutors, and doctors, should do to assist survivors of
sexual violence. The High Court has also formed a committee headed by Justice
Gita Mittal to oversee the implementation of all guidelines related to sexual
violence against adults and children.[5]

In April 2010 Human Rights Watch attended a Mumbai
conference that gathered women’s rights activists from across India to
discuss the proposed Criminal Law (Amendment) Bill, 2010, which seeks to
introduce a new definition for “sexual assault” and also to amend
certain procedural and evidentiary rules for related criminal trials. The
women’s rights activists present prepared a set of recommendations to be
shared with the government, including one that unanimously reiterated their
longstanding demand for the prohibition of the finger test as part of forensic
examinations of rape survivors.

Human Rights Watch also analyzed around 160
judgments—153 from High Courts across the country and seven Supreme Court
judgments—rendered during the last five years in order to determine how
medical opinions based on the finger test were used in courtroom proceedings on
rape beyond Mumbai and Delhi.

Terminology and
Scope

The phrase “sexual violence” is used in this
report to refer to all forms of sexual violence, both penetrative and
non-penetrative. In addition, since India does not have an overall definition
of sexual violence, the terms “sexual offense,” “sexual
violence,” “sexual assault,” and “rape” are used
in this report interchangeably. India currently only defines four sexual
offenses: rape (as penile penetration),[6]
an “unnatural offence—carnal intercourse against the order of
nature with man, woman, or animal,”[7] which in practice
is also used to punish child sexual abuse, “outraging the modesty of
women,” and “insulting the modesty of women,” which are used
to punish non-penetrative sexual offences.[8] Indian law does not
recognize the offence of marital rape, and a man cannot by law be prosecuted or
punished for raping his wife.[9]

Boys, men, and transgender persons are also victims of
sexual assault, and they face some similar and some different problems.[10]
While this report discusses the need for specialized and sensitive procedures
of examination for all children and adults who face sexual violence or abuse,
it specifically focuses on female survivors of sexual violence.

The phrase “forensic examination” is used in
this report to describe all parts of the medical examination that doctors
conduct on survivors of sexual violence, including the internal gynecological
examination, and “forensic evidence” or “medico-legal
evidence” is used to describe all evidence generated by a forensic
examination. “Medico-legal opinion” is a phrase commonly used in India
to refer to the medical opinions written by doctors after examining a rape
survivor, which have legal evidentiary value. “Prosecutrix” is a
term used in India to refer to a survivor of sexual violence during trial.

Textbooks and doctors describe finger test findings using
the terms “hymenal orifice,” “vaginal orifice,” and
“vagina” interchangeably, and Human Rights Watch has reproduced
them as such.

III. Background

Sexual violence is, disturbingly, a growing trend in India.[11]
Between 1990 and 2008, reported rapes soared by 112 percent nationwide,
according to the National Crime Records Bureau, while cases of molestation and
sexual harassment also increased between 2001 and 2008 (the years for which
data is available). Such figures likely understate the problem.[12]
Many victims of sexual violence do not report attacks or follow through with
prosecution due to fear of ridicule or retribution, pervasive myths about
sexual violence,[13]
and a criminal justice system that offers no protection or support to victims
and witnesses.[14]
The absence of a comprehensive definition of sexual violence in Indian law[15]
has also hindered the prosecution of various sexual offences, resulting in
acquittals or inadequate punishments for convicted criminals.[16]

Health care providers play a crucial dual role in the
response to sexual violence. They provide therapeutic care after an assault and
yet they also assist in any criminal investigation. On the one hand, they must
provide medical treatment for any injuries suffered by the survivor, address
any adverse psychological, sexual, and reproductive health consequences of the
assault,[17]
and can also provide referrals to legal and social welfare services.[18]
On the other hand, doctors conduct forensic examinations of survivors seeking
evidence of a crime, and may later interpret this evidence as witnesses in
court. The World Health Organization (WHO) recommends that health care and
forensic services be provided at the same time, and by the same person, to
reduce the potential for duplicating questions and retraumatizing the survivor
of assault. The WHO guidelines state that the health and welfare of a survivor
of sexual violence is “the overriding priority” and that the
provision of forensic services cannot take precedence over health needs.[19]

In countries such as Canada, South Africa, the United
States, and the United Kingdom, one-stop multidisciplinary centers provide
survivors of sexual violence with integrated services, including physical and
psychological care. Staff members at such centers offer medical aid and psychological
counseling using standard treatment and examination protocols. They are trained
to be sensitive to the needs of assault survivors and to treat them without
bias or prejudice. In some cases, survivors may even file a criminal complaint
at the center, giving a statement in a manner that respects privacy and dignity
in order to launch a criminal investigation. Many of these centers are also
linked to other specialized support services, including social welfare and
legal aid.[20]
Such centers, governed by standard treatment and examination protocols, can
play a key role in ensuring adequate standards of care and supporting the
collection of forensic evidence for survivors of sexual violence. They can also
serve as an educational resource for health care workers, police, lawyers, and
judges.[21]
While this report focuses on sexual violence, this kind of integrated service
could also extend care to survivors of other gender-based violence, such as
domestic violence and acid attacks.

India currently has no nationwide policy or guidelines to
govern the medical treatment and forensic examination of survivors of sexual
violence nor the provision of psychosocial support and other specialized
services to them.[22]
Women’s rights groups have urgently pressed for a sensitive, holistic
approach to treating and examining survivors of sexual violence. Almost all the
doctors who spoke with Human Rights Watch said that the Indian central and
state governments need to introduce a program of therapeutic care for survivors
of sexual violence and their families.[23] Doctors and
activists who have analyzed medical responses to rape survivors in India say
that the categorizing of such survivors as “medico-legal cases,”
has led most doctors to treat them as “walking, talking crime
scenes,” invariably focusing solely on forensic examination.[24]

The psychological and social consequences of sexual violence
can play out in myriad and unexpected ways. A trial court judge told Human
Rights Watch that rape survivors in her court often grapple with the
psychological fallout of the violence without any support and some have become
suicidal.[25]
A lawyer assisting a 14-year-old survivor of gang rape reported that the
girl’s father abandoned the family, blaming the mother for what had
happened.[26]
In another case, the parents of a six-year-old survivor of rape told Human
Rights Watch that since the rape, their older daughter had dropped out of
school and her fiancé had broken off their engagement; the girls’
father, unable to focus on his work, had quit his job.[27]
Another lawyer helping a 15-year-old rape survivor said that the rape had left
her pregnant, she had delivered a baby and now her father was trying to arrange
for her to marry her rapist (not an uncommon practice in India).[28]

Despite the layers of trauma, many social workers and health
rights activists who have assisted rape survivors told Human Rights Watch that
police and hospital staff often treat survivors, especially older girls and
adults, with little or no sensitivity, adding to their grief. For instance, Dr.
Rajat Mitra of Swanchetan, a Delhi-based nongovernmental organization that
provides emotional and psychological support to thousands of rape survivors in
different parts of India, said:

In cases of very young girls—girls below [age] 12 or 13—they
[police officers and hospital staff] believe it is a case of sexual abuse. But
if they are older, then they believe that the girl is trying to falsely frame
someone. Their belief changes the way they address the survivors. They are very
rude and disrespectful. They will say things like, “Why are you
crying?” “You have only been raped.” “You are not
dead.” “Go sit over there.” And order them around.[29]

Recollecting what she had seen accompanying survivors to
hospitals, another social worker said, “In one case, the doctor said
something like, ‘You there! You are so dirty! Don’t sit on that
chair!’ because she had come immediately after the assault, and had blood
and soiled clothes.”[30]
Discussing another of her cases, she said,

In another gang rape case, the survivor was made to sit for
six hours after the medical examination inside the labor room without even
being allowed to change out of her bloodied clothes and shower. When she saw
me, she asked me if there was a way she could get some water so she could wash
up. I ran from the labor ward to the emergency ward trying to get a bucket of
water. You won’t imagine how hard it is to even get some water to wash
up![31]

Summing up the overall experience of rape survivors in the
health care and criminal justice systems, Dr. Mitra said,

Many of our rape survivors have told us how police and
doctors treat them. The experience by and large is humiliating for all victims.
It adds to their overall trauma after rape. Some of them just become numb.
Others find the whole process entirely dehumanizing. The insensitive manner and
distrust with which they are treated negates their very being.[32]

Women report specific difficulties with the ways they are
treated during the process of forensic evidence collection. Police officers and
doctors often send survivors from one hospital to another to take various
tests, and often make them wait for hours, subject them to multiple
uncomfortable examinations, and sometimes publicly identify them as “rape
cases” in hospital corridors.[33]
Some survivors are admitted to hospital for up to five days because certain
doctors are not immediately available to examine them and aspects of the
forensic examination take time. The hospital then charges the survivor’s
family the costs of the hospital bed and examinations.[34]
Overburdened gynecologists and other physicians are often reluctant to examine
rape survivors because they want to avoid embroiling themselves in a complex
and sensitive case that could eventually require them to testify in court. One
Delhi-based forensic expert said, “They will be dragged out of their work
in another ward to come and examine [the rape survivor], and this annoys them,
and they take out that anger on rape survivors.”[35]

***

Women’s rights, children’s rights, and health
rights activists have been strong advocates for changing criminal laws and
health care and criminal justice practices for dealing with sexual violence.
Though much remains to be done, some promising developments, including recent
amendments to criminal laws, demonstrate the Indian government’s
willingness to protect the rights of women and children who experience sexual
violence.[36]
In March 2010, the Indian central government publicized and invited response to
a draft Criminal Law (Amendment) Bill that seeks to reform both substantive and
procedural laws regarding sexual violence.[37] The government has
also initiated drafting a separate law dealing with sexual offences against
children. In response to Supreme Court orders, the National Commission for
Women and the Ministry of Women and Child Development have drafted a proposal
for the “relief and rehabilitation” of rape survivors.[38]
Simultaneously, a “Perspective Plan for Indian Forensics,” which
aims to reconsider the ways in which all forensic services are delivered, is
under development.[39]
This time of change presents a unique opportunity for reforming the approaches
of the criminal justice and health care systems to survivors of sexual
violence.

This report does not present the whole range of problems
that survivors of sexual violence encounter in their interactions with the
Indian criminal justice and health care systems. Instead, it discusses the
problems posed by one of the most archaic forensic procedures still in use: the
finger test—a practice where the examining doctor notes the presence or
absence of the hymen and the size and so-called laxity of the vagina of the
rape survivor and comments about whether she is “habituated to sexual
intercourse.”[40]

The Role of Forensic Evidence in Sexual Violence Trials

Collection of forensic evidence is routine in sexual
violence cases in India. Usually, after the police register a complaint of rape,
police officers take the survivor to a government hospital to collect forensic
evidence. A doctor examines the rape survivor and prepares a report (commonly
known as a medico-legal certificate or MLC) that becomes part of the evidence.
The doctor may also collect and seal samples (vaginal swabs, blood samples,
nail clippings, and so on) and hand them over to the police officers, who take
them for testing at a forensic laboratory, which also submits a report.[41]
All the reports, along with the doctor’s opinion, are then used in court,
along with the oral testimony of the doctor, if any.[42]

Under Indian criminal law, the prosecution can secure a
conviction on a rape charge based solely on the testimony of the rape survivor,
provided the testimony is cogent and consistent, inspiring confidence. The law
does not require corroboration by forensic evidence to secure a conviction.[43]
In theory, it is legally relevant but not essential. However, prosecutors and
lawyers have told Human Rights Watch that in practice, judges and the police
give significant weight to forensic evidence, and it can influence whether a
conviction is secured.[44]

Forensic evidence plays a powerful role inside and outside
the court. Several legal experts and activists interviewed by Human Rights
Watch said that in their experience, it significantly influences the beliefs of
both the police and doctors about whether a woman was in fact raped.[45]
Maharukh Adenwala, a legal activist with many years of experience assisting
rape and child sexual abuse survivors, said,

How sincerely and seriously the police investigate the case
itself depends on what they see in the medico-legal report. They form an
opinion about whether the woman was actually raped or not just based on what
the doctor’s report says. So if the doctor’s report is written
poorly, it does affect us [the prosecution], even though technically, medico-legal
evidence is not required for conviction.[46]

Problems with Forensic Evidence and its Use in Rape Trials

Given the importance of medico-legal evidence, it is
critical for such evidence to be properly collected, stored, tested, recorded,
and presented in court. Yet for decades, problems have riddled Indian
procedures for the collection and use of medico-legal evidence.

Delays in reporting rape and in gathering and processing
forensic evidence pose a huge stumbling block for the prosecution. It is well
documented that many rape survivors do not immediately lodge a police complaint
because of the tremendous social stigma attached to the crime.[47]
Yet the defense counsel often uses any reporting delay to discredit the
survivor. Delays in reporting rape also lead to the loss of forensic evidence,
which may weaken the survivor’s case in court.

When survivors of sexual violence decide to file a report,
they often face unnecessary impediments.[48] Survivors who
approach health care providers directly often find that doctors are reluctant
to examine and treat them unless they have already registered a police
complaint, which can discourage or delay them from pursuing treatment.[49]
Even when forensic evidence is collected without delay, poor methods of
collection, storage, and chain of custody of evidence, as well as processing
delays, often either render it unusable or result in inconclusive information.[50]

Doctors’ evidence collection techniques are extremely
uneven. In the past, Indian criminal law did not specify what types of
information should be collected during a forensic examination of a rape
survivor. In 2006, the law was amended to provide some clarity on this, but
many activists feel that the new law has not been effectively implemented.[51]
Further, the 2006 amendment still left a great deal of discretionary scope for
individual hospitals or doctors to record what they considered relevant as
“other material particulars in reasonable detail.”[52]
The Indian Medical Association (IMA), a voluntary network of doctors across the
country, has, with the help of the Indian Department of Women and Child
Development, developed a standard template for the forensic examination of rape
survivors.[53]
Yet as neither the doctors nor the department have the power to implement it in
hospitals, it is not followed nationally.[54] There have been
localized initiatives. In early 2010, the office of the Delhi Director General
of Health Services issued a template similar to that of the IMA, to be followed
in all Delhi government hospitals.[55]
In June 2010 the Maharashtra state government introduced state-wide guidelines
to standardize a system in which many hospitals had their own templates, and where,
in those that did not, doctors would write medical opinions on blank sheets of
paper.[56]
Health rights activists across the country have criticized all of these various
templates as flawed, because they are either based on outdated medical
jurisprudence textbooks or on medical practice passed down over the years that
has ignored scientific developments, current legal trends, and survivors’
rights.[57]

In any event, forensic examination protocols or templates
alone are not sufficient. Doctors repeatedly told Human Rights Watch that the
Indian government should introduce training to demonstrate how to use protocols
and develop medical opinions in an accurate and scientific manner without
prejudices against survivors.[58]
Dr. N. Jagadeesh, a forensic expert who has analyzed medico-legal responses to
sexual violence, said that “there are inherent biases in the manner in which
the doctor writes the reports. Some hospitals do it well. Many do a
superficial, mechanical job.”[59]
Based on his experience from accompanying hundreds of rape survivors for
forensic examinations, Dr. Rajat Mitra said, “There is no informed,
uniform, or sensitive procedure. What guides the testing is the personal belief
of the police and the doctor.”[60]

Doctors who examine rape survivors receive little, if any,
training on how to conduct a forensic examination and document evidence.[61]
Unlike many other countries, India does not have a class of forensic nurses or
specialized training programs in forensic examination for sexual offences for
medical students.[62]
Dr. Harish Pathak, a professor of forensic medicine who formerly headed the
forensic medicine departments of leading government hospitals in Mumbai,
explained doctors’ preparation:

At best, doctors will have some half-an-hour or one hour
lecture on medical evidence every year. No training. Nothing at all for medical
examination in rape cases. Compare this to SAFE—Sexual Assault Forensic
Examination— programs in other countries like Canada and US. They have a
dedicated cell where women can come and report sexual assault and be treated
and examined by trained doctors.[63]

Forensic experts, lawyers, and health activists told Human
Rights Watch that the absence of such training left doctors ill-equipped: most
doctors do not know how to collect evidence and write consistent and accurate
medico-legal opinions. A Delhi-based forensic medicine expert cited examples of
medico-legal reports where the doctor had merely recorded that a rape survivor
displayed no injury marks or bleeding, without noting that this might be
because the survivor had delayed reporting the assault. He said that later the
defense tried to take advantage of this to suggest that no rape had occurred.[64]
He said, “There should be a simple format and doctors should be told how
much to write and what is relevant. And ideally, when doctors are working to
examine a victim, they should be able to consult with lawyers. We need some
kind of inter-sectoral approach where everyone works together.” Adenwala,
a legal activist who aids women and children survivors of sexual abuse, said
that she finds that a poorly written medical opinion can often prejudice police
officers and judges against a survivor and cause them to doubt the merits of
her case.[65]
Rebecca Mammen John, another leading criminal lawyer, reiterated the importance
of training doctors to write medico-legal opinions, citing several examples of
inconsistent and unclear documentation that led to confusion during trials.[66]

The Indian women’s movement has consistently noted
that medico-legal opinions and their interpretations frequently perpetuate
damaging stereotypes in the law. For instance, the assumption is to doubt
whether a woman or girl was in fact raped if she does not show obvious signs of
emotional distress, which are recorded in the medical report, or if she shows
no visible physical sign of injury from her “resistance” to rape.[67]
Flavia Agnes, a leading feminist lawyer in the country, has strongly condemned
the “blatantly anti-women statements” in medical jurisprudence
textbooks that are “disguised as neutrality,” and fail to
“take into account the recent trends in medico-legal aspects of rape.”[68]
The finger test, more commonly known as the two-finger test, is an example of
an arcane test presented in many medical jurisprudence books and commonly
practiced by doctors in many hospitals in India.

IV. The Use of the “Finger Test”

In the finger test, also known as the two-finger test, the
examining doctor notes the presence or absence of the hymen and the size and
so-called laxity of the vagina of the rape survivor.”[69]
The finger test is widely used in efforts to assess whether unmarried girls and
women are “habituated to sexual intercourse.”[70]
Yet the state of the hymen offers little to answer this question. A hymen can
have an “old tear” and its orifice may vary in size for many
reasons unrelated to sex, so examining it provides no evidence for drawing
conclusions about “habituation to sexual intercourse.”[71]
Furthermore, the question of whether a woman has had any previous sexual
experience has no bearing on whether she consented to the sexual act under
consideration. The continued use of the finger test points to a gulf between
Indian forensic and legal practice and current scientific knowledge and court
decisions that recognize women’s rights.[72]

Archaic Theory in Practice

The origin of the test remains unclear. References to the
test in Britain can be found as far back as the early 18th century,[73]
and it appeared in a leading medical jurisprudence book in British India in the
1940s. At this stage, ironically, the finger test was used to dispel the myth
that an “intact hymen” proved rape had not occurred. Mimicking
penile penetration, doctors inserted two fingers through an intact hymenal
orifice to show that it could stretch without tearing.[74]
The test and prescriptions for its use continue to be found in textbooks
currently assigned to medical students and often consulted by lawyers and
judges, but now the test is described and used in the context of determining
whether a rape survivor was “habituated to sexual intercourse,” as
though that were possible or could help determine whether she had been raped.[75]

Over the years the test has been normalized in India and has
entered widespread practice in many hospitals across the country. Although
several lawyers feel that recent Supreme Court judgments and amendments to the
Indian Evidence Act have deterred such testing and its use in court, the
practice is far from being eliminated.[76]

At least three leading government hospitals in Mumbai,
including one where at least a thousand rape survivors are examined every year,
continue to conduct the finger test. These hospitals’ forensic
examination template specifically asks doctors to state whether the
“[h]ymenal orifice: admits: One/two fingers.”[77]

In Delhi, Dr. Rajat Mitra from Swanchetan, a nongovernmental
organization that has worked with thousands of rape survivors from the city and
other parts of the country, described the practice as “near
universal.”[78]
One judge who has served in trial courts across various districts of Delhi said
that doctors routinely write results of the finger test into their medico-legal
opinions, especially in the outer districts of Delhi, and this allows defense
counsel to use them as evidence in court.[79] Khadijah Faruqui,
a Delhi-based lawyer and human rights activist who works with Jagori, a
feminist resource center, has assisted hundreds of rape survivors, and said
that doctors have been receptive to concerns about the two-finger test in New
Delhi (one district of Delhi), but it continues to be used commonly in other
parts of the city. She said: “In cases where activists go with the victims
and say it should not be conducted, doctors do not conduct it. That is about 20
to 30 percent of the cases. In others, they conduct it.”[80]

The practice is not just confined to Mumbai and Delhi.
Anecdotal evidence suggests that it is even more prevalent outside the big
cities. For instance, Dr. Indrajit Khandekar, a forensic expert from rural
Maharashtra who authored a report analyzing the problems with forensic evidence
collection there, said that he has seen many medico-legal opinions that include
finger test results.[81]
A gynecologist from Chandigarh in northern India said that the practice was
common there too.[82]
Neelam Singh, a gynecologist who conducts trainings for medical officers in
Uttar Pradesh state, said that she had seen doctors use this test.[83]
Shazneen Limjerwala, who wrote her doctoral dissertation on rape in the state
of Gujarat, said the practice occurs there too.[84]
Even the Indian Medical Association (IMA) protocol for the forensic examination
of rape survivors, which has been disseminated in regional workshops across the
country,[85]
seeks information about the “hymenal size,” whether the vaginal
opening is “narrow” or “roomy” and has “old
tears,” whether injuries to the hymen are “fresh/recent/old,”
and asks the doctor to give an opinion as to whether the medical evidence
suggests “habitual sexual intercourse.”[86]

Seventeen nongovernmental organizations and 51 activists and
lawyers from across the country wrote in a January 2010 open letter to Minister
of Law and Justice Veerappa Moily that the “finger test continue[s] to be
used … allow[ing] doctors to state whether a woman [is]
‘habituated’ to sex. This test allows character evidence to
disqualify a victim’s testimony.” The activists continued: “Change
in the structure of humiliation which typifies rape trials is not possible
unless medical jurisprudence textbooks and procedures are changed.”[87]
They reiterated this demand in a letter to the Indian government in June 2010.[88]

Human Rights Watch examined 153 High Court judgments in rape
cases across the country that referred to the finger test, all issued since
2005, and some as recently as 2009 and 2010.[89] This analysis
shows that defense counsel and courts throughout India continue to invoke
finger test findings in proceedings in rape cases.[90]

Doctors and activists say that the most common descriptions
of findings from finger tests in medico-legal reports are: “two fingers
admitted,” “two fingers easily admitted,” or “two
fingers not easily admitted.”[91]
In some reports these types of comments are combined with observations about
whether the hymenal tear is “old.” Some doctors describe the vagina
using different phrases such as “patulous vagina” or
“distended vagina.” These findings are then used to give opinions
about whether the rape survivor was “habituated,” “used
to,” or “accustomed to” sexual intercourse.[92]
The complete illogic of these findings is illustrated by cases where an
examining doctor deposed that a survivor who reported gang rape was
“habituated to sexual intercourse.” In some of these cases, judges
pointed out that the gang rape itself could have caused the doctor to conclude
that the girl or woman was “habituated” to sex.[93]

Some doctors continue to administer the test to very young
children who have been raped. Human Rights Watch spoke to a Mumbai-based mother
of a six-year-old girl who was raped, and whose 2010 medico-legal report
included the words, “tip of finger admitted.”[94]
Similarly, judgments show that doctors have conducted finger tests on children
as young as age six, and these findings have subsequently been used as evidence
that penetration did or did not take place.[95] For instance, in
the case of Mohammed Jaffar, who was charged with raping a six-year-old girl,
the doctor stated that “the hymen orifice admitted tip of little finger
… and the vaginal orifice admits one finger with difficulty.”[96]
The court used this as evidence that there was no penile penetration, ordered
that rape charges be dropped, and reduced the sentence to an offense of attempt
to rape.[97]
Children’s rights groups across India have expressed concerns about the
lack of a clear and sensitive protocol for forensic examination of sexually
abused children, both boys and girls.

Where hospitals have medical forms for doctors to record
their findings, doctors record the results against columns that are either
marked “per vaginum digital examination,” or “fingers
admitted,” or state their finding against a column that asks whether the
vagina is “narrow/ roomy.”[98] For instance, the
June 2010 guidelines issued by the Maharashtra government carries a section
that seeks the following information from the examining doctor: the “type
of hymen,” whether the hymen is “intact/ torn,” “age of
tears,” and whether the “[h]ymenal orifice: admits: one/ two
fingers.”[99]

Similarly, the IMA protocol and the 2010 Delhi protocol ask
doctors to furnish information on whether the hymen injury is
“fresh,” “recent,” or “old,” the
“size of the hymenal orifice,” and whether the vagina is “narrow,”
“roomy,” or has “old tears.”[100]
Both protocols also ask the examining doctor to give an opinion on the
following lines:

After performing the above mentioned clinical examination,
I am of the considered opinion that the findings are
………………………………
consistent / not consistent with ……………………
recent / old / habitual sexual intercourse.[101]

Doctors who do not use any templates for their medico-legal
reports generally include a line that reads “P/V” or
“PV” (for “per vaginum” examination) and state how many
fingers passed or just say whether the survivor was “habituated to sexual
intercourse.”[102]

Doctors alone cannot shoulder the responsibility of changing
how medico-legal opinions are written and presented in court. There is evidence
to suggest that in some cases police officers ask doctors to conduct the finger
test. Dr. Indrajit Khandekar, who is an assistant professor of forensic
evidence at the Mahatma Gandhi Institute of Medical Sciences in Wardha, said,
“I have seen many requisition letters [to doctors requesting forensic
examinations] by the police which ask the question ‘Is the girl
“habituated” to sex?’”[103]
Some doctors said they felt compelled to use the finger test to render an
opinion about whether a rape survivor was “habituated to sexual
intercourse,” either because hospital protocols include this information,
or because they feared that either defense counsel or judges would ask them why
they omitted the test and failed to provide an opinion.[104]
Confirming their fears, one former sessions judge said that if doctors do not
conduct the test, “Judges will ask doctors ‘Why was this test not
conducted?’ ‘Is this woman habituated to sexual intercourse?’
They will have to give an opinion.”[105]

A medico-legal report that identifies an unmarried girl or
woman as allegedly “habituated to sexual intercourse” attaches
extreme stigma to her, compounding the considerable stigma unmarried women
already face when reporting rape, and adding to a general stereotype about
sexually active women.[106]
Police officers, prosecutors, other lawyers, and judges may have a conception
that a “bad” woman of “loose morals” may try to press a
false charge of sexual assault against an innocent man. For instance, one
former public prosecutor who spoke with Human Rights Watch said, “I find
that in most cases where the man is not known to the woman, then it is
definitely rape, but where the man is known to the woman, it is usually not
rape, and it is a case of false charge.”[107]

Lawyers told Human Rights Watch that usually no acquittal or
conviction rests completely on the findings of the finger test, but the defense
uses these findings to break the morale of the survivor while she is testifying
in court, to question her character and credibility, or to dispute her consent
to the sexual act under consideration.[108]

Undermining the Confidence, Character, and Credibility of
Rape Survivors

Especially in the case of an unmarried woman or girl, being
identified as “habituated to sex” can make it a harrowing
experience for her to aid the investigation and prosecution. A 2003 amendment
to the Indian Evidence Act says that the defense cannot cross-examine the
prosecutrix about her “general immoral character.”[109]
Several legal experts said this amendment had provided some relief to
survivors.[110]

But questions about character have not been stamped out of
trial court practice because the extent to which such questions are allowed or
disallowed is dependent on the sensitivity and personal beliefs of the
presiding judge. For instance, lawyer and human rights activist Khadijah
Faruqui said that in her experience, the Patiala House Court (trial court
complex) located in central Delhi is more sensitive to the problems of the
finger test, but that judges in other parts of Delhi often accept arguments based
on finger test findings.[111]
Similarly, lawyer Rebecca Mammen John explained that “archaic”
finger test findings give an “unfair advantage” to the defense,
which uses the findings to influence the judge.[112]
She said,

As long as the two-finger test remains, it will provide the
defense with a ready-made line of argument. And rape trials in India will be
dependent on the individual sensitivity of judges, prosecutors, and defense
counsels. Why should that be the case? It is an archaic procedure and needs to go.[113]

One judge who has overseen rape trials for nearly two
decades said that many defense lawyers used the “habituated to sex”
opinion to shake the confidence of survivors testifying in court, and judges
respond unevenly. The judge said,

The defense will try to beat the morale of the victim by
raising questions about her character. They know these are irrelevant and
cannot be asked of the victim. Even if the judge disallows the question, they
[defense] will say, “You disallow my question but put it on record.”
It takes a long time—putting it on record, disallowing the
question—these things take time. So they will simply try to tire the
victim in court. They will ask a hundred irrelevant questions and one relevant
question. It is an art or strategy—to ask questions about her character.
And even if it is disallowed, the damage is done—it has affected the
victim psychologically. And this is where some judges get overawed by the
defense and then stop intervening to control them. And it takes many hours or
even days for the testimony of the victim to be recorded. And at the end of a
harrowing day, victims break down in court. That is what questions about
character are for—it plays a huge role in demolishing the strength of the
victim in court.[114]

Courts have at times made comments about the
“character” of the rape survivor based on the finger test results.
For example, in a 2009 rape case in which Musauddin Ahmed was the defendant,
the Supreme Court (in spite of its own previous judgment) stated that
“the prosecutrix appears to be a lady used to sexual intercourse and a
dissolute lady.” And further, that “she had no objection in mixing
up and having free movement with any of her known person, for enjoyment. Thus,
she appeared to be a woman of easy virtues.”[115]

In the case of Hare Krishna Das, who was also accused of
rape, the Patna High Court placed great weight on the doctor’s opinion
that the survivor was “habituated to sex.” Acquitting the accused
for lack of medical evidence, the court reasoned that the testimony of the rape
prosecutrix was not reliable:

Though the girl was aged about 20 to 23 years and was
unmarried but she was found to be “habituated to intercourse.” This
makes her to be of doubtful character.[116]

Alternatively, judges interpreted pain, blood, or fresh
hymenal tears during a forensic examination to mean the rape survivor was not
loose or that it was her “first” experience of sexual intercourse.
For example, in Suresh Kumar’s case, the High Court of Chhattisgarh
evaluated the medical evidence and held:

She was complaining pain and the vagina was admitting
1½ finger [sic] ….

From the medical report it is clear that the prosecutrix
was not a girl of lax moral and she was not “habituated to sexual
intercourse” and most probably, that was her first experience as the
doctor has observed reddishness on her vagina and blood secretion and pain on
touching the vagina.[117]

In another case, the court looked at medical evidence that
showed the doctor had inserted two fingers “with difficulty,” and
further, that “when the fingers were inserted there was bleeding.”
Based on this, the court concluded that the survivor was not “habituated
to sex,” and her “virginity was violated for the first time.”[118]

Especially in cases where a doctor has noted that hymenal
tears are not fresh and two fingers passed easily, courts have used the
information against rape survivors. In Gokul’s case, the court acquitted
the accused and observed that:

The prosecution has also failed to show that the rupture of
vagina was fresh. On the contrary, the evidence is that two fingers could
easily enter in the vagina.… If [a] version given by the prosecutrix was
unsupported by any medical evidence or whole surrounding circumstances were
improbable and belief [sic] the case sent up by the prosecutrix, the Court
should not act on the solitary evidence of the prosecutrix.[119]

Even where medico-legal reports show that two fingers have
not easily passed, lawyers have used this in favor of the accused. For
instance, one former public prosecutor said,

If the prosecutrix says she is raped and then it comes in
medical evidence that two fingers have not passed, then it goes towards
positive evidence for the accused. It is a critical piece of evidence for the
defense. If there is penetration, then two fingers should pass.[120]

Similarly, medico-legal reports showing that even one finger
passes with difficulty during the finger test have been taken as evidence that
there was in fact no penetration.[121]
Yet the finger test is not a reliable indicator of whether prior penetration
has ever taken place.[122]
Furthermore, the use of medico-legal findings against the prosecutrix run
contrary to the Supreme Court decisions holding that penetration under the law
does not require full penetration of the vagina and penetration to any degree
is sufficient to prove a charge of rape.[123]

Defense Arguing Survivors’ Consent

Where medico-legal reports record findings such as
“old tear” or “two fingers easily passed,” the defense
has used them to argue that the girl or woman, who was “habituated to
sex,” likely gave her consent and was not raped.[124]
One former public prosecutor said,

Where the defense takes the line that there was consent [to
sexual intercourse], usually they also look to medical evidence for support.
And if the medical report says anything about the two-finger test, then they
draw it out in court—saying she was “habituated” so consented
and is falsely implicating the accused.[125]

Another former public prosecutor said,

The finger test is relevant for the defense especially if
the prosecutrix case is that the woman is unmarried [as opposed to a married
woman who is assumed to be “habituated to sex”]. Then if the
medical report says that two fingers have passed, the defense can show that she
is habituated. This shakes the testimony of the prosecutrix.[126]

One former trial court and high court judge, who has
adjudged many rape trials and appeals, stated that whether a woman was
“habituated to sex” was irrelevant but said that the benefit of
doubt was given to the accused in “borderline cases.” She said,

Every rape case is unique, so it is difficult to say
whether generally the two-finger test will be relevant. But “admits two
fingers” shows that the woman is used to sexual intercourse—it does
not show anything else. But in borderline cases, the defense will get some
benefit of doubt if it is shown that the woman is “habituated [to sexual
intercourse].”[127]

Human Rights Watch found that many trial and appellate
proceedings across the country have used this line of argument and courts have
interpreted this in different ways.[128]
In some cases, the courts accepted this argument, but eventually held that even
though there might have been consent, it is irrelevant because the survivor was
aged under 16 years at the time of the incident, which constitutes statutory
rape (also known as “technical rape”) under Indian law.[129]

Medico-Legal Findings a Scientific Myth

Medico-legal opinion based on the finger test has no
scientific value. Many forensic experts, gynecologists, and doctors in India
have rejected it, saying that the finger test and related assessments are
completely baseless, unscientific, and do not generate any reliable or valid
information.

Indian courtroom proceedings related to rape routinely
discuss the state of the girl’s or woman’s hymen.[130]
A common misconception underlying these proceedings is that the hymen is like a
closed door sealing the vaginal opening, which is necessarily
“broken” on “first intercourse.” The hymen is actually
just a collar of tissue around the vaginal opening that does not cover it
fully. Especially in pubertal and post-pubertal girls and women, it becomes
elastic. Contrary to the medico-legal significance attached to the hymen in
Indian rape trials, the international consensus is that the examination of a
woman’s or girl’s hymen cannot indicate definitively whether she is
a “virgin” or is “sexually active.”[131]
“Old tears” or “laxity” of the hymen and vagina do not
prove that a girl or woman is “habituated to sex,” because they can
be caused by exercise, physical activity, or the insertion of tampons or
fingers, among other events not related to sexual intercourse.It is
precisely for these reasons that the WHO guidelines state that specialized
training is required for doctors to conduct genito-anal examinations, and
understand and interpret findings accurately in the case of all survivors under
age 18.[132]
In any event, whether a woman or girl has had consensual sex in the past has no
bearing on whether she consented to the sexual activity under investigation.[133]

The head of the department of forensic medicine in a leading
Delhi hospital said,

It [two-finger test] is all a myth. Nothing—no
scientific evidence to show that if two fingers pass or don’t pass it has
anything to do with being “habituated [to sexual intercourse]” or
penetration at all. Now this myth is being used in courts.[134]

Similarly, Dr. Amar Jesani, a general physician and leading
health and human rights activist in the country, said, “There is no
scientific evidence to show that this test is correct. It is high time that the
government revised its old textbooks from the 19th and 20th
century.”[135]

Even if the presence of the hymen and size of the vagina did
reliably answer questions about a girl or woman’s sexual
experience—which they do not—the results of the test would still be
arbitrary and unscientific because they vary depending on the size of the
examiner’s fingers and his or her subjective assessments. Dr. Harish
Pathak, a professor of forensic medicine, explained how the finger test violates
the basic principle of objectivity in science:

The two-finger test is not scientific. What is scientific?
Scientific evidence is that which is objective, and when the test is repeated
by anyone, then the same results will be achieved. The two-finger test is a
subjective test. There are many variables—the test results will be
different depending on the size of the doctor’s fingers. If someone like
Dara Singh [a big-built Indian wrestler] is the doctor conducting the test,
then the results will be different than when I conduct it. Then the doctor has
to say “whether one or two fingers passed easily,”– what is
easily? What is easy for one person may not seem like it is easy for another.[136]

Raising similar concerns, Dr. N. Jagadeesh, another leading
forensic expert, said, “Whose fingers are we talking about? And what is
easy? This is not science.”[137]

Dr. Khandekar, an assistant professor of forensic medicine,
said,

The finger test needs to go. Doctors have been conducting
this because old textbooks have been recommending this, and there is no clear
pro forma [format] for conducting medical tests and developing medico-legal
reports in rape cases. Different hospitals use different formats or some
doctors just write a medico-legal report however they want to. The test has no
relevance at all when assessing whether the victim was raped.[138]

Anecdotal evidence from actual courtroom examples highlights
the arbitrariness and subjectivity inherent to the finger test. For example,
doctors have testified that women and girls are “habituated to sex”
even where the vagina admits “two fingers with difficulty” [139]
or “one finger.”[140]
In one case, a 12- or 13-year-old girl who was raped was subjected to two
forensic examinations. One doctor deposed: “vagina admitted one finger
with difficulty. Victim felt pain on introduction of finger in vagina.”
The second doctor who examined her deposed: “vagina admits two fingers
tightly.” The defense counsel sought to take advantage of this
discrepancy in doctors’ depositions and argued that there was no rape,
but the judge rejected the argument.[141] No one suggested
that the doctors’ varying opinions showed their subjectivity, and thus
rendered the test invalid.

Denouncing the test categorically and saying it was
“unprofessional, unscientific, and generated no reliable evidence”
about anything, one judge strongly advocated excluding it from forensic
examinations of rape survivors.[142]

In fact, the Indian Supreme Court, whose decisions are
binding across the country, has itself observed that “the factum of
admission of two fingers could not be held to be averse to the
prosecutrix,” and described finger-test assessments as
“hypothetical and opinionative,” implying recognition for the
inherently subjective, arbitrary, and unscientific nature of the test and
related opinions.[143]

Judges and lawyers told Human Rights Watch that medical and
legal professionals must be made more aware of the unscientific nature of this
test if it is to be eliminated from medico-legal opinions, courtroom
proceedings, and judgments.[144]
The WHO guidelines for medico-legal care for survivors of sexual violence
clearly states that even a purely clinical procedure such as a bimanual
examination is rarely justified following sexual assault.[145]

Finger Test Results in Repeated Trauma

Inserting fingers into the vaginal or anal orifice of an
adult or child survivor of sexual violence can cause additional trauma, as it
not only mimics penile penetration but can also be painful. In their June 2010 letter
to the Indian government, Indian women’s rights activists drew the
government’s attention “to the existence of tests
like the two-finger test, which further aggravate women’s experience of
assault.”[146]

Anecdotal evidence suggests that some doctors in India
conduct the two-finger test with little or no regard for a survivor’s
experience of pain or trauma during such examinations. For instance, in one
case, a gynecologist examined the survivor, found that she had a vaginal injury
that was 6.4 centimeters long, sutured the wound, and referred her to a
“medical jurist”— a doctor assigned to handle medico-legal
cases. The second doctor proceeded to conduct her own examination, and found
that the hymen was absent, noticed the stitched wound, and nevertheless
inserted two fingers, recording: “vagina admitted two fingers and blood
was coming out of the stitches.”[147] In yet another
case, a doctor noted that the hymen was ruptured, inflamed, and vagina
lacerated; and conducted the finger test and deposed: “vagina of the
prosecutrix admits two fingers with difficulty and painfully.”[148]
Similarly, another doctor reported that when he inserted one finger into the
vagina of a 13-year-old rape survivor, it was “very painful.”[149]
The WHO guidelines recognize that while some pain may be unavoidable given the
nature of the examination, but recommend that an examining doctor should take
steps to minimize pain either by conducting a limited examination or by
administering analgesics.[150]

Pratiksha Baxi, a leading Indian feminist sociologist, has
condemned the finger test as a technique that “rests on the precarious
desexualisation of a clinical practice.” She points out that inserting
fingers into a woman’s vagina without her consent constitutes a sexual
assault, yet the two-finger test is conducted under the rubric of a
professional investigation, and doctors obtain blanket uninformed consent for
the forensic examination in advance.[151]

In India, health care workers ask adult survivors of sexual
violence and guardians of child victims to consent to a forensic examination
without providing detailed information or ensuring that they understand the
procedure in a meaningful way. Indian law and WHO recommendations both say that
a rape survivor must give her consent for a forensic examination.[152]
The WHO guidelines state that the examining doctor should explain every step of
the examination procedure to a survivor, giving her an opportunity to refuse
any part of it.[153]
Activists who accompany rape survivors to forensic examinations and lawyers who
prosecute rape told Human Rights Watch that doctors generally seek blanket
consent for any and all medical procedures to be conducted as part of the
forensic examination, but seek no specific consent for the finger test, whose
details and potential impact rape survivors generally do not understand at all.[154]

One adult survivor told Human Rights Watch,

The clerk told me a male doctor will conduct the test
[forensic examination] and asked me whether that was ok. I said
“yes.” But other than that, I did not know what they were going to
do. I was so scared and nervous and praying all the time: “God, let this
be over and let me get out of here fast.” I don’t know what
information they collected. I did not even know it was going to be like a
delivery examination [internal gynecological examination]. They used some
machine and checked the place I urinate from. Took some blood, urine.
That’s all.[155]

One parent of a six-year old child who had been raped said,

The check-up happened in the delivery room. I was not
allowed inside with my daughter when she was examined. She went in with a lady
police officer. I only know that they collected blood and urine because they
gave it to me in dibbey [containers] and asked me to take it to the
police station. I do not know what else they did during the examination.[156]

She showed Human Rights Watch a photocopy of her
child’s medico-legal report, which stated that the “tip of finger
passed” into the “hymenal orifice.” She did not know the
significance or the meaning of this test, or how this information would be used
during the trial.[157]

Survivors of rape seldom have a real opportunity to refuse
consent for medical procedures. One social worker said,

It is very rare that women can say, “I don’t
want this part of the examination,” or ask questions about what is being
done. Even with social workers present, it is very difficult. In all the cases
that we have dealt with, I know of only two cases where women have been able to
say what they want. In one case, the woman stated clearly that she did not want
an internal vaginal examination because the man had only tried to rape
her and had not succeeded, so it was not necessary. In another case, the victim
said she wanted to mull over whether she wanted the examination and to give her
some time.[158]

Another human rights activist said,

In one or two cases I have seen doctors force the victim to
go through all the tests. In one case, the victim only wanted a STD/HIV test to
be done. She was menstruating and she was not comfortable. But basically the
doctor told her she has to take the exam and she said ok.[159]

Several leading criminal lawyers said that rape survivors
face adverse consequences if they refuse consent to the full forensic
examination. If a rape survivor refuses to go through the entire test, the
police may consider her uncooperative, reducing their commitment to the
investigation, and if the case eventually goes to court, the defense may argue
that she had something to hide.[160]

Lawyer Rebecca Mammen John noted a case when her client was
damaged by a doctor’s note that she was “very uncooperative.”
In the medical certificate, the examining doctor had noted the presence of
internal injuries and had observed in writing that the victim had difficulty
walking. The doctor also noted in the medico-legal report that the victim was
“very uncooperative,” which the defense sought to exploit in court.
She continued:

When we found out why the doctor had written “very
un-cooperative” in the report, we found that it was because she [the rape
survivor] had refused to undergo this two-finger test. She had pressed her legs
together and refused to allow the doctor to examine her any more. She obviously
did that because she was in tremendous pain. We are talking of someone who has
just been raped and in pain … And I don’t understand the need for
this [finger test] because the doctor had already recorded that there was a
tear in the posterior fourchette [part of the vagina] and she had difficulty in
walking. The two-finger test should go. It is an archaic procedure that adds to
the trauma of rape victims and actually compounds their suffering.[161]

“Habituation to Sexual Intercourse” Legally
Untenable

Over time, Indian medico-legal practice has become
disconnected from legal developments.

The Indian Supreme Court made two important pronouncements
that render the finger test untenable. First, the court has held that
two-finger test results cannot be used against the prosecutrix.[162]
Second, it has clearly and repeatedly held that showing that a survivor is
“habituated to sexual intercourse” is immaterial to the issue of
consent in a rape trial.

In State of Uttar Pradesh v. Pappu, the Indian
Supreme Court held that the prosecutrix’s “habituation to sexual
intercourse” was irrelevant. In this case, while hearing the appeal
against the trial court’s judgment, the Allahabad High Court acquitted
the accused, accepting the defense argument that the prosecutrix was a
“girl of easy virtues,” and that medical evidence showed she was
“habituated to sexual intercourse” and displayed no physical injuries.
The prosecutrix was known to the accused, and the defense counsel had argued
that “the prosecutrix was not having a good character and since her house
was in front of his house, he and his family members asked them to leave that
place and hence the false case was foisted.”[163]
Reversing the judgment of the Allahabad High Court, the Supreme Court held,

Even assuming that the victim was previously accustomed
[to] sexual intercourse, that is not a determinative question. On the contrary,
the question which was required to be adjudicated was did the accused commit
rape on the victim on the occasion complained of. Even if it is hypothetically
accepted that the victim had lost her virginity earlier, it did not and cannot
in law give licence [sic] to any person to rape her. It is the accused who was
on trial and not the victim. Even if the victim in a given case has been
promiscuous in her sexual behavior earlier, she has a right to refuse to submit
herself to sexual intercourse to anyone and everyone because she is not a
vulnerable object or prey for being sexually assaulted by anyone and everyone.[164]

The Supreme Court reaffirmed its decision in the case of State
of Uttar Pradesh v. Munshi, where the Allahabad High Court acquitted
the accused on grounds that the survivor did not display physical injuries and
was “habituated to sexual intercourse.” Setting aside the order of
the Allahabad High Court, the Supreme Court pointed out that being
“habituated to sexual intercourse” was not relevant.[165]

Yet again, in State of Punjab v. Ramdev Singh,
the Supreme Court set aside the acquittal order of the Punjab High Court. The
High Court had held that the prosecution case was unreliable for four reasons,
including a medico-legal report showing that the prosecutrix was “habituated
to sexual intercourse.”[166]
Discussing the High Court’s grounds for acquittal, the Supreme Court
held, “Merely because of [a] doctor's hypothetical and opinionative
evidence that the victim was accustomed to sexual intercourse, [the]
prosecution version of rape was not to be discarded.”[167]

Moreover, proposed amendments to criminal laws in India make
the test redundant. The Criminal Law (Amendment) Bill, 2010, seeks to amend the
Indian Evidence Act to include a provision that states that in a prosecution for
sexual assault, “where the question of consent is in issue, evidence of
the character of the victim or of his [sic] previous sexual experience with any
person shall not be relevant on the issue of such consent or the quality of
consent.”[168]
It further seeks to amend the existing definition of rape to sexual assault
rendering this test legally obsolete because “sexual assault” in
the proposed definition is no longer limited to penile-vaginal penetration.

International Law

As it is currently practiced in India, the finger test and
interpretations of it violate the rights of rape survivors to privacy, physical
and mental integrity, and dignity. Under international law, rape survivors are
entitled to legal recourse that does not retraumatize them or violate their
physical or mental integrity and dignity. They are also entitled to medical
procedures conducted in a manner that respects their right to consent. Medical
procedures should not be carried out in a manner that constitutes cruel,
inhuman, or degrading treatment.

India is party to the International Covenant on Civil and
Political Rights (ICCPR), the International Covenant on Economic, Social, and
Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and
the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), and has an obligation to ensure that the rights of survivors of sexual
violence or abuse are protected.

Article 12 of the ICESCR guarantees the right to physical
health, including sexual and reproductive health, and mental health. Issuing an
authoritative interpretation of Article 12, the Committee on Economic, Social
and Cultural Rights, its treaty-monitoring body, said that a state’s
obligation to protect women’s rights includes health in the context of
gender-based violence.[169]
Health services—preventive, curative, and rehabilitative—should be
physically and economically accessible.[170] Hence India has
an obligation to make such services available to survivors of sexual
violence.

Article 5 of the Universal Declaration of Human Rights
(UDHR) and Article 7 of the ICCPR clearly state that no person can be subjected
to “cruel, inhuman or degrading treatment.”[171]
The UN Human Rights Committee, its treaty-monitoring body, issued an
authoritative commentary on Article 7 of the ICCPR, noting that the “aim
of the provisions of article 7 … is to protect both the dignity and the
physical and mental integrity of the individual.”[172]
It clearly specifies that the prohibition under Article 7 applies to
“patients” in “medical institutions.”[173]
The prohibition applies irrespective of whether a person inflicting such cruel
and degrading act is “acting in their official capacity,”
“outside their official capacity,” or “in a private
capacity.”[174]
For an act to constitute “cruel, inhuman, or degrading treatment,”
it is not necessary to cause “physical pain.” “Acts that
cause mental suffering to the victim,” are also prohibited.[175]
States should protect everyone through “legislative and other measures as
may be necessary against acts prohibited by article 7.”[176]

India is not a party to the Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment (CAT), but this convention provides
additional information on what types of acts are considered cruel, inhuman, and
degrading treatment under international law. Article 16 of the CAT requires
states to prevent cruel, inhuman, or degrading treatment or punishment that
does not amount to torture when committed by, at the instigation of, or with
the acquiescence of a public official or other person acting in an official
capacity.

Sir Nigel Rodley, the former UN special rapporteur on
torture and other cruel, inhuman or degrading treatment, received information
on the issue of virginity testing of rape survivors. The special rapporteur
classified “virginity-testing” as a form of “gender specific
… torture,” and responded to “information according to which
women, even minors, were subjected to these tests after having complained of
rape.” Discussing these complaints, the special rapporteur pointed to the
information supplied to him that these tests were a “traumatic and
humiliating experience” resulting in “stigmatization in the particular
sociocultural context” of the rape survivors. He concluded that the basic
principles for reparation should be observed and that rape survivors should not
be retraumatized by being subjected to virginity tests.[177]
The special rapporteur reiterated that domestic laws should ensure that a
“victim who has suffered violence or trauma” benefits from
“special consideration and care to avoid his or her retraumatization.”

The finger test during forensic examination and related
discussions about whether the survivor is “habituated to sexual
intercourse” constitutes a form of inhuman and degrading treatment within
the meaning of Article 7 of the ICCPR. Identifying survivors of sexual violence
as being “used to sexual intercourse” in the Indian social context
humiliates them. It violates the physical and mental integrity of survivors of
sexual violence. This is also contrary to the WHO guidelines (see below).

Article 17 of the ICCPR also protects an individual from
“arbitrary or unlawful interference with his privacy,” and
“unlawful attacks on his honour and reputation.” The UN Human
Rights Committee has said that even interference that is stipulated under the
law can be arbitrary if it is not in keeping with the “provisions, aims,
and objectives” guaranteed by ICCPR or if it is unreasonable
interference.[178]
The continued use of the finger test and identifying women as being
“habituated to sex” even though the Indian Supreme Court has
clearly held that the results of the test cannot be used against rape survivors
and further that whether she is “habituated to sexual intercourse”
or not is irrelevant, constitutes an arbitrary and unlawful interference with
the survivor’s reputation.

Specifically in the context of “body searches,”
the UN Human Rights Committee has said that states should ensure that
“such searches are carried out in a manner which is consistent with the
dignity of the person who is being searched.”[179]Forensic examinations of rape survivors are a specialized form of a body
search conducted by doctors to collect any medical evidence of the assault.
Given the particularly sensitive and intimate nature of these examinations, the
state is under an obligation to ensure that doctors are provided with
specialized training to conduct these examinations with utmost care and
sensitivity, respecting the rape survivor’s dignity at all times.

The United Nations Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power and Basic Principles and
Guidelines on the Right to A Remedy and Reparation for Victims of Violations of
International Human Rights and Humanitarian Law specify that both state and
non-state actors should treat victims “with compassion and respect for
their dignity and human rights”[180] and
“measures should be taken to ensure their safety and privacy.”[181]
The state has a special obligation to ensure that “its domestic laws, as
much as possible, provide that a victim who has suffered violence or trauma
should benefit from special consideration and care to avoid his or her
retraumatization in the course of legal and administrative procedures designed
to provide justice and reparation.”[182]

International Standards

The World Health Organization has issued detailed guidelines
for medico-legal care for victims of sexual violence. According to these
guidelines, one of the “priorities” of medical care is
“[c]oncern for the welfare of the patient” where doctors should
also ensure “that patients are able to maintain their dignity after an
assault that will have caused them to feel humiliated and degraded.” The
guidelines further state that “medical and forensic services should be
offered in such a way so as to minimize the number of invasive physical
examinations and interviews the patient is required to undergo.”[183]

In relation to internal vaginal examinations, the WHO
guidelines state:

That “[m]ost examinations in pre-pubertal children
are non-invasive and should not be painful.”[184]

That for adults and post-pubertal girls, a speculum
examination may be required in the following situations: genital pain,
bleeding, if a foreign body was used during the assault, and for assaults
that occurred more than 24 hours prior to the examination, to collect
swabs from the cervical canal.[185]

That a bimanual examination (a clinical procedure that
also involves inserting fingers to detect medical conditions of the uterus
or urinary tract) is “rarely indicated post sexual assault,”
meaning that such examinations are rarely medically justified in this
context.[186]

In relation to internal rectal examinations, the WHO
guidelines state:

Speculums or anoscopes and digital or bimanual
examinations do not need to be used in child sexual abuse examinations
unless medically indicated.

In relation to child sexual abuse, “consider a
digital rectal examination only if medically indicated, as the invasive
examination may mimic the abuse.”[187]

A digital rectal examination is recommended only if a
foreign object may have been inserted into the anal canal.[188]

V. Acknowledgments

This report was researched and written by Aruna Kashyap,
researcher for the Women’s Rights Division of Human Rights Watch, with
secondary research support from Reena Reddy, intern with the Women’s
Rights Division, and Chloë Fussell, associate in the Women’s Rights
Division. The report was edited by Liesl Gerntholtz, director of the Women’s
Rights Division. Aisling Reidy, senior legal advisor, and Danielle Hass and
Robin Shulman, consultants to the Program Office, also reviewed the report.
Joseph Amon, director of the Health and Human Rights Division; Bede Sheppard,
Asia researcher for the Children’s Rights Division; and Meenakshi
Ganguly, South Asia director, provided input and comments on portions of the
report.

We are particularly indebted to the external reviewers who
provided input on an early version of the report. These include Kalpana
Kannabiran, director of Asmita Collective, Hyderabad, Pratiksha Baxi, assistant
professor at the Center for the Study of Law and Governance, Jawaharlal Nehru
University, Usha Ramanathan, independent legal researcher and human rights
activist, New Delhi, Chayanika Shah from the Forum Against Oppression of Women,
Mumbai, and Flavia Agnes, director, Majlis, Mumbai.

We are very grateful to the many forensic experts and
doctors, representatives of local NGOs, lawyers, families of survivors and
others who assisted our research by sharing their experiences and views on the
subject, in particular, CEHAT and Dr. Indrajit Khandekar, assistant professor
of forensic medicine, Mahatma Gandhi University, Wardha.

The views expressed in this report are those of Human Rights
Watch and Human Rights Watch takes full responsibility for any errors or
omissions.

We acknowledge with gratitude the financial support of
Arcadia, the Moriah Fund, the Trellis Fund, and the other supporters of the
work of the Women’s Rights Division of Human Rights Watch.

VI. Appendix

Extract from a template for forensic examination used in a leading
government hospital in Mumbai that examines at least 1000 rape survivors every
year.[189]

Medico-legal reports written by doctors in rural Maharashtra, India.[190]

[1]
A clinical procedure that involves the insertion of two fingers to diagnose
medical conditions of the uterus or urinary tract.

[2]The number of registered cases allows for a greater
chance of complete investigation feeding into prosecutions. See, for example,
the National Crime Records Bureau, “Crime in 1990: Table-59 Victims of
Rape Under Different Age Groups During 1990,” November, 1991,
http://ncrb.nic.in/ciiprevious/Data/CIII1990/cii-1990/Table-59.pdf (accessed
July 21, 2010), p. 190; National Crime Records Bureau, “Crime in 2008:
Table-5.3 (Concluded) Age-Group-Wise Victims of Rape Cases (Total) During
2008,” December 29, 2009,
http://ncrb.nic.in/CII2008/cii-2008/Table%205.3.pdf (accessed July 21, 2010),
p. 398.

[4]Human
Rights Watch phone interview with Padma Deosthali, coordinator, CEHAT, Mumbai,
June 3, 2010. CEHAT, “Survivor Consent Form,” and “Sexual
Assault Survivor Examination Proforma.” The CEHAT protocol was shared
with the Indian government as part of the Note on the Criminal Law (Amendment)
Bill, 2010, prepared by Indian women’s rights groups.

[7]
Section 377, Indian Penal Code, 1860. As it stands, this provision also
criminalizes consensual sex between two adults of the same sex. Indian lesbian,
gay, bisexual, and transgender rights activists have for decades called for the
repeal of this provision and the inclusion of a separate provision to punish
child sexual abuse. In July 2009, the Delhi High Court held that section 377
was unconstitutional in its application to consensual sex between adults of the
same sex. See Naz Foundation (India) Trust v. Government of NCT,
Delhi, and others. A petition against the Delhi High Court decision is
pending in the Supreme Court. For more information on section 377, see Human
Rights Watch, “The Alien Legacy: The Origins of ‘Sodomy’ Laws
in British Colonialism,” December 2008, http://www.hrw.org/en/reports/2008/12/17/alien-legacy-0.

[9]
Section 375, Indian Penal Code, 1860, provides for an exception to rape: Sexual
intercourse by a man with his wife, the wife not being under 15 years of age,
is not rape.

[10]
The biggest hurdle for boys, men, and transgender persons who experience sexual
violence in India is the absence of a framework that recognizes the various
forms of violence that can be perpetrated against them. The law as it stands
also criminalizes “carnal intercourse against the order of nature,”
which includes consensual sex involving men and transgender persons. This
causes much harassment to sexual minorities in India. See Alok Gupta,
“Section 377 and the Dignity of Indian Homosexuals,” Economic
and Political Weekly, November 18, 2006, http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/15-1.pdf
(accessed August 24, 2010).

[11]
Section 375 of the Indian Penal Code defines rape. The official Indian National
Crime Records Bureau provides data on the number of cases where complaints have
been registered for rape. See for example, the National Crime Records Bureau,
“Crime in 1990: Table-59 Victims of Rape Under Different Age Groups
During 1990,” November, 1991,
http://ncrb.nic.in/ciiprevious/Data/CIII1990/cii-1990/Table-59.pdf (accessed
July 21, 2010), p.190; National Crime Records Bureau, “Crime in 2008:
Table-5.3 (Concluded) Age-Group-Wise Victims of Rape Cases (Total) During
2008,” December 29, 2009,
http://ncrb.nic.in/CII2008/cii-2008/Table%205.3.pdf (accessed July 21, 2010),
pp. 397-8. Between 1990 and 2008 (the more recent year for which official data
is available), the data shows roughly a 112 percent increase in India overall.

Since India does not have a comprehensive definition
of sexual violence, there is no official data on all the different forms of
sexual violence and the recorded number of cases. However, there is some data
on the number of cases of molestation and sexual harassment. See, Ministry of
Home Affairs, “Crime-head wise incidents of crimes against women in India
(2001-2008),” http://www.indiastat.com/CrimeandLaw/6/IncidenceandRateofCrimeCommittedAgainstWomen/453345/389705/data.aspx
(accessed July 22, 2010). This data also shows there has been a rise in the
number of cases of molestation and sexual harassment between 2001 and 2008.

[13]
See World Health Organization (WHO), “Guidelines for
medico-legal care of victims of sexual violence,” 2003,
http://whqlibdoc.who.int/publications/2004/924154628X.pdf (accessed July 21,
2010), pp. 10-11, for a discussion on myths surrounding rape and a list
of common myths, including that sex is the primary motivation for rape, only
certain types of women are raped, rape is perpetrated by a stranger, rape
involves a great deal of violence, and that rape leaves obvious signs of
injury.

Human Rights Watch found that these myths were
reinforced by different actors in the Indian criminal justice and health
systems. For example, in Human Rights Watch interview with Radha M. (name
changed to protect identity), a former chief public prosecutor, location
withheld, May 11, 2010, she stated that from her experience she believed that
usually women who were raped by strangers were telling the truth but that women
who said they were raped by an acquaintance were lying.

See Human Rights Watch interview with Dr. Harish
Pathak, a leading forensic medicine expert, Mumbai, May 10, 2010, where he
stated that rape survivors who did not have injuries faced higher rates of
post-traumatic stress disorder because no one or fewer people believed that
they were raped. See for example, Anand Holla, “A girl being raped would
‘resist fiercely’: HC,” Mumbai Mirror, July 19, 2010,
http://www.mumbaimirror.com/article/2/201007192010071902533881633a9776f/A-girl-being-raped-would-‘resist-fiercely’-HC.html
(accessed August 2, 2010), where it was reported that the Aurangabad Bench of
the Bombay High Court acquitted the accused because the girl’s conduct
was “unnatural” as she did not resist and no scuffle broke out. For
a detailed analysis of courtroom proceedings that reinforce some myths around
sexual violence, see Kalpana Kannabiran, “A Ravished Justice: Half a
Century of Judicial Discourse on Rape,” De-Eroticizing Assault, Essays
on Modesty, Honour, and Power (Calcutta: STREE, 2002), pp. 104-169.
Kannabiran shows through her analysis of judgments how many judges
characterized rape as a crime committed to fulfill male lust, or alternatively,
looked for signs of “resistance” against “violent” rape
and interpreted the absence of injuries as absence of rape.

[14]
See Letter by Indian women’s groups to Mr. G. K. Pillai, Secretary,
Ministry of Home Affairs, Government of India, June 2010. In this letter the
women’s groups called for a victim and witness protection program in
India that would assist survivors of sexual violence.

[15]
At the writing of this paper, the Indian Penal Code 1860 had not yet been
amended to improve definitions of sexual offenses. As it stands, the law does
not carry comprehensive and graded punishments for different forms of sexual
violence based of the gravity of the offense. The Indian Penal Code defines
rape (section 375) and it is punishable by a maximum sentence of life
imprisonment. All other sexual offences, ranging from forcibly stripping and
parading women naked, sexual mutilation, and sexual harassment to passing lewd
remarks, are punishable by either a maximum two-year term under section 354 or
a one-year term under section 509 of the Indian Penal Code. These sections
together criminalize any word, act, gesture, or criminal force used to
“outrage” or “insult” the “modesty” of a
woman, use phrases that are not only patriarchal but also ineffective in
punishing sexual offenses, and have come under repeated criticism of Indian
human rights activists. There is no definition of “child sexual
abuse” in Indian law. Child rights activists are compelled to use section
377 of the Indian Penal Code, which defines an “unnatural offence,”
to prosecute for child sexual abuse. Section 377 violates the rights of gay,
lesbian, bisexual, and transgender persons as it also criminalizes consensual
sex between two adults of the same sex.

See Letter by Indian women’s groups to Mr. G. K.
Pillai, Secretary, Ministry of Home Affairs, Government of India, June 2010. In
this letter, the Indian women’s groups discussed the range of problems
posed by the narrow definition of “sexual assault” under the
proposed amendment which did not recognize and adequately punish
non-penetrative forms of sexual violence including sexual mutilation and
forcibly disrobing and parading women naked.

[16]
The December 2009 law reform process was initiated in response to nation-wide
protests against a six-month term of imprisonment handed to a police officer
who was convicted of molesting a minor girl. The sentence was recently revised
in appeal.

[17]WHO, “Guidelines for medico-legal care of victims of
sexual violence,” p.1. According to the World Health Organization,
the reproductive and sexual health consequences of sexual violence include
unwanted pregnancies, sexually transmitted infections (STIs), HIV/AIDS, and an
increased risk of adopting risky sexual behavior. The mental health
consequences of sexual violence are also serious and long-lasting, and can
include depression, substance abuse, post-traumatic stress disorder (PTSD), and
suicide. See also, Human Rights Watch interviews with
Radha M. (name changed to protect identity), a former chief public prosecutor,
location withheld, May 11, 2010, and Dev D. (name changed to maintain anonymity
as requested), a former public prosecutor, New Delhi, May 22, 2010. Both
prosecutors stated that counseling services should be provided to rape
survivors.

[20]
Human Rights Watch interview with Dr. Muriel Volpellier, a sexual offences
examiner, The Havens Sexual Assault Referral Center (SARC), London, July 12,
2010. Dr. Volpellier said that these centers are set up through the joint
effort and funding from the London Metropolitan Police and the National Health Service.
There are three such centers in London and similar centers are opening in other
parts of the United Kingdom. Doctors in these centers are trained to conduct
forensic examinations and are called sexual offenses examiners. Similarly
Canada has Sexual Assault Care Centers (SACCs). For more information, see,
Sexual Assault Care Center, http://www.sacc.to/asap/aboutus/aboutus.htm
(accessed August 2, 2010).

South Africa has similar one-stop multidisciplinary
centers that are known as Thuthuzela Care Centers. For more information, see,
United Nations Children's Fund (UNICEF), “South Africa: Thuthuzela Care
Centres,” undated, http://www.unicef.org/southafrica/hiv_aids_998.html
(accessed May 28, 2010).

Various states in the United States have centers with
varying services. For example, the Rape Treatment Center at Santa Monica/UCLA
Medical Center provides integrated services. More information about this center
is available at http://www.911rape.org/about-us/who-we-are (accessed August 10,
2010). Many states also have Sexual Assault Response Teams (SARTs) and Sexual
Assault Nurse Examiners (SANEs) who provide coordinated services when a
survivor reports sexual violence in a hospital.

Several countries have passed laws or created policies
and programs to ensure that survivors of sexual violence have access to a set
of integrated services. See for example, South Africa’s National Sexual
Assault Policy, Department of Health, 2005, on file with Human Rights Watch.
Countries like the Philippines and Spain have laws providing for integrated
services for survivors. See for example, Women and Children Crisis Survivors
Assistance and Protection Act, 2007, http://webapps01.un.org/vawdatabase/uploads/Philipppines%20-%20rape%20victim%20assistance%20act%201998.pdf
(accessed June 22, 2010), and Act 35/1995 of September 11, For the Provision of
Aid and Assistance to Victims of Violent Crimes and Sexual Offences, http://webapps01.un.org/vawdatabase/searchDetail.action?measureId=3176
(accessed June 22, 2010).

[22]
A draft proposal for a national scheme for the relief and rehabilitation of
victims of rape has been put forward by the National Commission for Women. See
“Revised Scheme for Relief and Rehabilitation of Victims of Rape,”
dated April 15, 2010, http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf
(accessed August 6, 2010). This proposal seeks to set up district level criminal
injuries relief and rehabilitation boards that will receive and process
applications for relief and rehabilitation which include psychological,
medical, and legal assistance to the victims. While the proposed scheme puts in
place a mechanism for survivors to apply for and receive support, it does not
lay down the standards for such treatment.

[23]
Human Rights Watch interviews with Dr. Anaka L. (name changed to maintain
anonymity as requested), a doctor who has analysed health system responses to
sexual violence, New Delhi, May 14, 2010; Padma Deosthali, coordinator, CEHAT,
Mumbai, April 27, 2010; Dr. Haroon N. (name changed to protect identity), head
of the forensic medicine department of a leading government hospital, New Delhi,
May 18, 2010; and Dev D. (name changed to maintain anonymity as requested), a
former public prosecutor, New Delhi, May 22, 2010; phone interviews with Dr.
Rajat Mitra, director, Swanchetan, New Delhi, May 25, 2010, and Dr. N.
Jagadeesh, a forensic expert and health rights activist working on creating
gender-sensitive rape examination protocols, Bangalore, May 12, 2010.

[25]
Human Rights Watch phone interview with Seema V. (name changed to maintain
anonymity as requested), a trial court judge who has served for nearly two decades
in different trial courts in Delhi, Delhi, July 3, 2010.

[28]
Human Rights Watch interview with Pratibha Menon, a lawyer, Mumbai, August 6,
2010. In March 2010, in a national consultation organized to discuss offering
psychological, social, and monetary support for rape survivors, the then chief
justice of India had controversially remarked that a survivor should be allowed
to marry the rapist if she chooses to, inviting much criticism from
women’s groups. See “Respect victim’s wish to marry rapist,
says CJI,” Times of India, March 8, 2010,
http://timesofindia.indiatimes.com/india/Respect-victims-wish-to-marry-rapist-says-CJI/articleshow/5655797.cms
(accessed August 6, 2010).

[33]
Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic
medicine expert, Mumbai, May 10, 2010; Dr. Anaka L., (name changed to protect
identity), a doctor who has analysed health system responses to sexual
violence, New Delhi, May 14, 2010; Padma Deosthali, coordinator, CEHAT, Mumbai,
April 27, 2010; and Dev D. (name changed to maintain anonymity as requested), a
former public prosecutor, New Delhi, May 22, 2010; phone interviews with Dr. N.
Jagadeesh, a forensic expert and health rights activist working on creating
gender-sensitive rape examination protocols, Bangalore, May 12, 2010, and Dr.
Duru Shah, a gynecologist and member of the ethics committee of the
International Federation of Gynecology and Obstetrics (FIGO), Mumbai, June 1,
2010.

[34]
Human Rights Watch interviews with Rani G. (name changed to protect identity)
and Gopal G. (name changed to protect identity), the parents of a six-year-old
child who was raped, Mumbai, July 15, 2010, and Priya M. (name changed to
maintain anonymity as requested) and Mikhail M. (name changed to maintain
anonymity as requested), the parents of an adult survivor, Mumbai, July 15,
2010.

[35]
Human Rights Watch interview with Dr. Haroon N. (name changed to protect
identity), head of the forensic medicine department of a leading government
hospital, New Delhi, May 18, 2010. See also, Human Rights Watch interviews with
Satish J. (name changed to maintain anonymity as requested), a doctor who
examines rape survivors in a government hospital (hospital name withheld at
doctor’s request), Mumbai, May 12, 2010; Dr. Anaka L. (name changed to
maintain anonymity as requested), a doctor who has analysed health system
responses to sexual violence, New Delhi, May 14, 2010; and Shazneen
Limrejwalla, a freelance researcher who wrote her PhD dissertation on rape in
Gujarat, Mumbai, August 3, 2010.

[36]
See Ministry of Home Affairs, The Code of Criminal Procedure (Amendment) Bill,
2005, June 23, 2005, http://www.mha.nic.in/pdfs/TheCCP(Amendment)Act,2005.pdf
(accessed June 16, 2010), and Ministry of Law and Justice, The Indian Evidence
(Amendment) Act, 2002, December 31, 2002,
http://www.commonlii.org/in/legis/num_act/iea2002205/ (accessed June 16, 2010).

[38]
National Commission for Women, “Revised Scheme for Relief and
Rehabilitation of Victims of Rape,” dated April 15, 2010,
http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf (accessed August 6, 2010).

[39]
Human Rights Watch email correspondence with Dr. Gopal Ji Mishra and Dr. C.
Damodaran, consultants developing the Perspective Plan for the Indian Ministry
of Home Affairs, June 6, 2010. Human Rights Watch phone interview with Dr.
Gopal Ji Mishra, Mumbai, May 30, 2010. Dr. Mishra stated that he could not
divulge any details about the Perspective Plan, but said the plan is “comprehensive”
and would address forensic evidence in rape cases.

[42]
Section 164-A, Criminal Procedure Code, 1973. Under Indian law, any registered
medical practitioner (not necessarily a gynecologist) employed in a hospital
run by the government or a local authority can collect medical evidence. In the
absence of such a practitioner, any other medical practitioner can collect
evidence.

[44]
Human Rights Watch interviews with Maharukh Adenwala, a senior practicing lawyer
who has assisted in the prosecution of hundreds of rape and child sexual abuse
cases, Mumbai, May 28, 2010; Rebecca Mammen John, a senior practicing criminal
lawyer, New Delhi, May 17, 2010; Dev D. (name changed to maintain anonymity as
requested), a former public prosecutor, New Delhi, May 22, 2010; and Radha M.
(name changed to protect identity), a former chief public prosecutor, location
withheld, May 11, 2010; phone interviews with Dr. N. Jagadeesh, a forensic
expert and health rights activist working on creating gender-sensitive rape
examination protocols, Bangalore, May 12, 2010; and Dr. Indrajit Khandekar, an
assistant professor in the Department of Forensic Medicine, Mahatma Gandhi
Institute of Medical Sciences, Wardha, May 7, 2010. Human Rights Watch’s
interview with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai,
May 10, 2010 also revealed the overall importance of medical evidence in rape investigations
in trials.

[45]
Human Rights Watch interview with Maharukh Adenwala, a senior practicing lawyer
who has assisted in the prosecution of hundreds of rape and child sexual abuse
cases, Mumbai, May 28, 2010; phone interviews with Dr. Rajat Mitra, director, Swanchetan,
New Delhi, May 25, 2010; and Asha George, a former sessions judge and member
secretary of the state legal services authority, New Delhi, May 15, 2010.

[46]
Human Rights Watch interview with Maharukh Adenwala, a senior practicing lawyer
who has assisted in the prosecution of hundreds of rape and child sexual abuse
cases, Mumbai, May 28, 2010.

[48]
This point was raised by many activists during the national consultations in
Mumbai and New Delhi that were organized to discuss the proposed Criminal Law
(Amendment) Bill, 2010.

[49]
Human Rights Watch interview with Padma Deosthali, coordinator, CEHAT, Mumbai,
April 27, 2010; phone interviews with Dr. N. Jagadeesh, a forensic expert and
health rights activist working on creating gender-sensitive rape examination
protocols, Bangalore, May 12, 2010, and Dr. Rajat Mitra, director, Swanchetan,
New Delhi, May 25, 2010. To resolve this, some activists and lawyers argued
that rape survivors should be allowed to go to a hospital and be treated and
examined by doctors irrespective of whether they lodge a complaint with the
police. Likewise, activists and lawyers say that doctors should be authorized
to collect evidence when rape survivors approach them directly, allowing a window
period within which they may choose to register a complaint and use the
collected evidence.

[50]
Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic
medicine expert, Mumbai, May 10, 2010; Dr. Anaka L. (name changed to maintain
anonymity as requested), a doctor who has analysed health system responses to
sexual violence, New Delhi, May 14, 2010; Maharukh Adenwala, a senior
practicing lawyer who has assisted in the prosecution of hundreds of rape and
child sexual abuse cases, Mumbai, May 28, 2010; Justice Manju Goel, a former
sessions judge and high court judge, New Delhi, May 15, 2010; and Dev D. (name
changed to maintain anonymity as requested), a former public prosecutor, New
Delhi, May 22, 2010; phone interview with Asha George, a former sessions judge
and member secretary of the state legal services authority, New Delhi, May 15,
2010. Many doctors said that the latest technologies to record internal
injuries were not used in hospitals. For example, a colposcope, which costs
about 150,000 rupees (approximately USD 3300), is not provided for medico-legal
examination.

[51]
See section 164-A, Criminal Procedure Code, 1973, which was introduced by an
amendment passed in 2005 and became effective in 2006. Human Rights Watch
interviews with Dr. Harish Pathak, a leading forensic medicine expert, Mumbai, May
10, 2010; Dr. Haroon N. (name changed to protect identity), head of the
forensic medicine department of a leading government hospital, New Delhi, May
18, 2010; Rajeev C. (name changed to protect identity), an official from the
Indian Directorate of Forensic Sciences, New Delhi, May 20, 2010; Padma
Deosthali, coordinator, CEHAT, Mumbai, April 27, 2010; Flavia Agnes, a feminist
lawyer and cofounder of Majlis, Mumbai, July 16, 2010; and Khadijah Faruqui, a
lawyer and human rights activist, Jagori, New Delhi, May 17, 2010; phone
interview with Dr. N. Jagadeesh, a forensic expert and health rights activist
working on creating gender-sensitive rape examination protocols, Bangalore, May
12, 2010.

[52]
Section 164-A, Criminal Procedure Code, 1973. According to this section, a
doctor conducting a forensic examination should record the name and address of
the survivor and the person who accompanies her, her age, a description of
material taken from the person of the woman for DNA profiling, any marks of
injury on her person, the general mental condition of the survivor, and
“other material particulars in reasonable detail.”

[54]
Human Rights Watch phone interview with Dr. Sharda Jain, ibid. Dr. Sharda Jain stated
that the IMA guidelines were developed in conjunction with the central
government and not being followed by the states because “health” is
not a federal subject under the Indian Constitution. However, lawyers and
activists who spoke with Human Rights Watch stated that the collection of
medico-legal evidence for submission in court cannot be seen as a matter of
“health” alone. Rather, it also relates to criminal law and
criminal procedures, which fall under the “Concurrent List” of the
Seventh Schedule of the Constitution, which gives the Indian parliament and
central government powers.

[56]
Directorate of Health Services, Government of Maharashtra, “Instructions
to Medical Officers for Performing Medicolegal Examination of Victims of Sexual
Violence,” No. DHS/MLC/D-3/10, June 11, 2010, issued in response to Ranjana
Pardhi and Vijay Patait v. Union of India and State of Maharashtra, Writ
Petition no. 46/2010.

[57]
Human Rights Watch interview with Padma Deosthali, coordinator, CEHAT, Mumbai,
April 27, 2010; phone interviews with Dr. Indrajit Khandekar, an assistant
professor in the Department of Forensic Medicine, Mahatma Gandhi Institute of
Medical Sciences, Wardha, May 7, 2010 and Dr. N. Jagadeesh, a forensic expert and
health rights activist working on creating gender-sensitive rape examination
protocols, Bangalore, May 12, 2010. Human Rights Watch email correspondence
with Padma Deosthali, CEHAT, July 13, 2010 where she sent Human Rights Watch
the following documents. CEHAT, “Critique of Proforma made by DGHS
[Director General Health Services], New Delhi,” (that was developed in
consultation with experts from across the country), undated, “Minutes of
the Meeting: Consultation on Comprehensive Health Care Response to Sexual
Assault,” May 29, 2010, and Letter by Padma Deosthali to Dr. D. S.
Dhakure, Directorate of Health Services, Maharashtra, July 8, 2010. All
documents are on file with Human Rights Watch.

[60]
Human Rights Watch phone interview with Dr. Rajat Mitra, director, Swanchetan,
New Delhi, May 25, 2010. See also, Human Rights Watch phone interview with Dr. Indrajit
Khandekar, an assistant professor in Department of Forensic Medicine, Mahatma
Gandhi Institute of Medical Sciences, Wardha, May 7, 2010, in which he said
that he had filed a petition in the Nagpur bench of the Bombay High Court
seeking the court to direct the Maharashtra and Indian central governments to
frame guidelines, since doctors’ examinations of rape survivors varied dramatically.

[61]
Human Rights Watch phone interview with Dr. Sharda Jain, National Chairperson,
Women’s Wing, Indian Medical Association, New Delhi, August 2, 2010.To fill the training gap, between 2006 and 2008 the
Indian Medical Association held regional workshops for doctors selected from
different states. But these have had limited impact since states have not
institutionalized such trainings and doctors who came to the workshops have not
disseminated the information widely to ensure their uniform adherence.

[62]
Human Rights Watch phone interview with Dr. Ruxana Jina, professor, School of
Public Health, University of Witwatersrand, South Africa, who contributed to
the manual developed by the South African Department of Health regarding
treatment and examination of rape survivors, New York, May 26, 2010.

[69]
Doctors told Human Rights Watch that usually the procedure is conducted by
inserting fingers into the vagina of the rape survivor. But Human Rights Watch
found that there were instances in which test results were also given based on
the width of the speculum (an instrument used to expand the vaginal passage for
medical examination) inserted into the hymenal orifice of the rape survivor.
See for example State of Punjab v. Gurmit Singh and others, MANU/SC/0366/1996,
para. 8, where the doctor wrote in her medico-legal report and testified in
court that “the size of the speculum was about two fingers.”

[70]The
test has also in at least some instances been conducted on married women. See
for example, Vijender Kala v. State of Haryana, MANU/PH/0130/2010.
In this case the 19-year-old prosecutrix was married and the two-finger test
was conducted but the findings were of little value because she was married.
Similarly, in Gulzar v. State of Himachal Pradesh, MANU/HP/0254/2007,
the prosecutrix was married and the doctor deposed that two fingers passed and
she was habituated.

[71]
For more information, see below, section titled “Medico-legal Findings a
Scientific Myth.”

[72]
This report deals with the use of the finger test for forensic examination only
and does not deal with the use of fingers for purely clinical medical
procedures. Several doctors explained that using two fingers as part of a
general clinical internal gynecological examination should not be conflated
with what has become normalized as the “two-finger test” for rape
survivors. They explained that gynecologists often use one or two fingers for
initial assessments to evaluate whether a speculum can be inserted without
causing pain. This, Human Rights Watch was told, is usual clinical practice for
most gynecological exams.

Another gynecologist explained how gynecologists use
one or two fingers as part of clinical gynecological examination that is
commonly known in medical terminology as a bimanual examination. Gynecologists
use this procedure to medically diagnose whether there have been any changes in
the uterus and ovaries, and to detect common uterine problems. They do not record
how many fingers can or cannot be inserted during these regular gynecological
exams. These are different and separate from what lawyers, judges, forensic
experts, and activists understand as the “finger test” or
“two-finger test,” part of a medico-legal procedure conducted after
a rape. Doctors interviewed for this report believed that greater communication
is necessary to ensure that the two are not inadvertently conflated by doctors
or legal professionals. It is pertinent to note, however, that WHO’s “Guidelines
for Medico-legal Care of Victims of Sexual Violence,” states that
“a bimanual examination is rarely indicated post sexual assault.”

[73]
See for example, Trial of William Picket, September 10, 1718,
http://www.oldbaileyonline.org/browse.jsp?id=t17180910-78-off390&div=t17180910-78&terms=finger#highlight
(accessed June 10, 2010), where the court noted that the “The Surgeon
said, that he examined the Parts and found them torn, and the Child being
afraid of a Probe, he introduced his Finger, found the Passage had been
widened, and did believe her Body had been entred [sic], but could not say by
what.” The court acquitted the accused of rape because the fact was not
proved;

Trial of Samuel Street, August 25, 1725,
http://www.oldbaileyonline.org/browse.jsp?id=t17250827-14-off53&div=t17250827-14&terms=one%20finger#highlight
(accessed June 10, 2010), where one midwife deposed before the jury that
“I examined the Child in two Weeks and two Days after the Hurt was
received, and I believe there had been an Attempt, but no Penetration; nor was
there then any Symptom of a Foul Distemper. I made use of one Finger, and
did not perceive that the Parts were much extended. Two Days after I came
again, and then the Passage appeared to be made much wider; and I found a
Running upon her.” The accused was acquitted of rape since the jury held
that there was no proof of penetration and was hence charged with misdemeanor;

Trial of Francis Moulcer, October 17, 1744, where the
doctor deposed: “Somebody must have entered her body, for I passed
my finger very easily into the part, which I could not have done into
the body of a child of that age, without great pain to her,” and the accused
was convicted;

Trial of Charles Earle for rape, December
5, 1770, http://www.oldbaileyonline.org/browse.jsp?id=t17701205-39-off169&div=t17701205-39&terms=finger#highlight
(accessed June 10, 2010), where the doctor deposed: “[T]here did not seem
to be any mark of violation, on the contrary, the hymen, which is the test of
virginity, was almost entire; the passage was very straight… the
passage was so straight as hardly to receive a finger… I
think it was impossible; I believe she had never been defiled.”

[74]
Jaising Modi, Modi’s Medical Jurisprudence and Toxicology (22nd
edn., New Delhi: Butterworths India, 2001), pp. 478, 503. Even where the
hymen is intact but the “hymenal orifice lets one, two or more fingers
pass through easily…. a body of the size of a penis in erection could
perfectly well pass through the hymenal orifice without rupturing it once or
several times…. In cases where the hymen is intact and not lacerated, it
is absolutely necessary to note the distensibility of the vaginal orifice in
the number of fingers passing into vagina without any difficulty.”

See also Parikh C. K., Textbook of Medical
Jurisprudence, Forensic Medicine and Toxicology (6th edn., New
Delhi: CBS Publishers and Distributor, 2005), pp. 5.11, 5.37. “If
(a) a woman has an intact hymen (b) its edges are distinct and regular, and (c)
the hymenal opening when stretched barely admits the tip of the little finger,
the findings are in favor of true virginity. On the other hand, if the hymen is
intact but its edges are undulated and the hymenal opening admits two fingers
to pass through easily, it is difficult to say on the basis of the intactness
alone whether the woman is a true virgin or a false virgin.” Parikh
recommends that during physical examinations of rape victims “the
distensibility of the vagina should be noted in relation to the number of
fingers it can admit without causing discomfort. If it can admit two fingers
easily, sexual intercourse has probably occurred.”

See also K.S. Narayan Reddy, The Essentials of Forensic
Medicine and Toxicology (26th edn., Hyderabad: K. Suguna Devi,
2007), pp. 436, 438. Digital examination [of the vagina] may show … some
laxity of the vaginal orifice (indicating previous penetration) … the
size of the vagina should be noted as admitting one, two or three fingers as
the case may be…. In all cases where there are no fresh injuries a
vaginal examination should be carried out to assess the laxity of the vaginal
orifice, […] the number of fingers that can be introduced though the
hymenal orifice, […] In most young women a finger can be passed into the
vagina although the hymen is intact.

[75]
Ibid. See also, State of MP v. Munna Choubey, MANU/SC/0055/2005,
para. 7, and Aman Kumar v. State of Haryana, 2004 Cri LJ 1399
where courts have held that partial penetration is sufficient.

[76]
For a discussion of Supreme Court judgments and amendment to the Indian
Evidence Act, see below, sections titled “Undermining the Confidence,
Character, and Credibility of Rape Survivors” and “‘Habituated
to Sexual Intercourse’ Legally Untenable.” Human Rights Watch
interviews with Khadijah Faruqui, a lawyer and human rights activist, Jagori,
New Delhi, May 17, 2010; and Rebecca Mammen John, a senior practicing criminal
lawyer, New Delhi, May 17, 2010; phone interview with Seema V. (name changed to
maintain anonymity as requested), a trial court judge who has served for nearly
two decades in different trial courts in Delhi, Delhi, July 3, 2010.

[77]
The forms used in all the three hospitals are identical. “Medical
Examination Certificate of Victim of Rape/Kidnapping,” para. VIII (e), on
file with Human Rights Watch.

[79]
Human Rights Watch phone interview with Seema V. (name changed to maintain
anonymity as requested), a trial court judge who has served for nearly two decades
in different trial courts in Delhi, Delhi, July 3, 2010.

[83]
Human Rights Watch phone interview with Dr. Neelam Singh, gynecologist,
Vatsalya, Lucknow, July 30, 2010. She said, “I have seen this many times.
Doctors who have worked in the field for ten [or] seven [or] five years, they
do not get any orientation or updated information. And it is very hard to change
their practices without guidelines. They use old methods and say things about
two fingers admitted in their report.”

[84]
Human Rights Watch interview with Shazneen Limrejwalla, a freelance researcher
who wrote her PhD dissertation on rape in Gujarat, Mumbai, August 3, 2010.

[88]
Letter by Indian women’s groups to Mr. G. K. Pillai, Secretary, Ministry
of Home Affairs, Government of India, June 2010, on file with Human Rights
Watch.

[89]
For the one case that did not consider the finger test results as valid
evidence, see Basant Ram v. State of Himachal Pradesh, MANU/HP/0021/2006,
where the doctor stated that when two fingers pass it shows that a woman is
habituated to sex but the judge was unclear whether the test was done or not.
Overall, the judge remarked that the medical evidence presented in the case was
poor and that the doctor had failed to conduct a thorough examination.

[92]
Human Rights Watch interviews with Dr. Harish Pathak, a leading forensic
medicine expert, Mumbai, May 10, 2010; Dr. Anaka L. (name changed to maintain
anonymity as requested), ibid.; and Dr. Haroon N. (name changed to protect
identity), head of the forensic medicine department of a leading government
hospital, New Delhi, May 18, 2010; phone interviews with Dr. Indrajit Khandekar,
ibid., and Dr. N. Jagadeesh, a forensic expert and health rights activist
working on creating gender-sensitive rape examination protocols, Bangalore, May
12, 2010. While analyzing the Supreme Court and High Court judgments, Human
Rights Watch found that doctors used phrases like “habituated to
sex,” “habitual sexual intercourse,” “accustomed to
sexual intercourse,” “used to sex,” “frequent
coitus,” or “sexually active” while describing their
conclusion.

[93]
In Kiriwas v. State of Chhattisgarh, MANU/CG/0057/2006, for
example, the doctor testified that the girl was “habituated” to sex
even though she reported being gang raped and the judge did not question what
this meant in the context of a gang rape. But in Uday Narayan Jana v. State
of West Bengal, MANU/WB/0435/2006, para. 55, the judge noted that
“habituation” to sex was evidence of “mass scale
violation” against the survivor. Similarly, in Pint Raj v. State
of Himachal Pradesh, MANU/HP/0094/2007, paras. 4 and 8 the judge said the
“habituation” to sex could be because she was gang raped.

In Harpal Son of Om Prakash Yadav and Ram Dr. Niwas
son of Bharat v. State of Uttar Pradesh, MANU/UP/1060/2007, the
defense argued that the medical testimony indicated that there was an old tear
and that two fingers had passed. The judge reasoned that the “old
tear” finding was probably because of a 10-day delay in conducting the
forensic examination and that two fingers passed easily because the survivor
was gang-raped.

In Narayan Vishvanath Rajput v. State of
Chhattisgarh, MANU/CG/0084/2007, the
doctor deposed that the vagina admitted two fingers easily and that there was
no evidence of recent intercourse. The prosecutrix was married and the judge
said that she could not have developed “previous intimacy” with the
perpetrators because she had met him only two days before the date of the gang
rape.

[94]
Human Rights Watch interview with Rani G. (name changed to protect identity),
the mother of a six-year-old child who was raped, Mumbai, July 15, 2010.

[95]
Human Rights Watch found that in 67 of the 153 cases, the rape survivor was
less than 16 years old. In 23 of the 67 cases, the age of the survivor ranged
from 6 to 12 years old.

[96]Mohammed Jaffaralias Jaffaralias Munna son of Umar
Mogal v. The State of Maharashtra and the Inspector of Police, MANU/MH/0448/2007,
paras. 6 and 7. Similar findings have been recorded in other cases, for
example, Satya Murti alias Satti v. Delhi, MANU/CG/0080/2006 (age 8); and Daya Nand
(through state) v. State of Haryana, MANU/PH/0461/2007 (age 8).

[97]Mohammed Jaffar’s case, ibid., para 9. The court said that the prosecution
had only succeeded in proving an offence of attempt to rape under section 511
of the Indian Penal Code.

[98]
Human Rights Watch saw the forms used for medical examination in different
hospitals in Mumbai and Delhi.

[104]
Human Rights Watch interview with Dr. Shalini H. (name changed to maintain
anonymity as requested), head of the department of gynecology in a leading
government hospital, New Delhi, May 18, 2010; phone interviews with Padma Deosthali,
coordinator, CEHAT, Mumbai, June 3, 2010, and Dr. N. Jagadeesh, a forensic
expert and health rights activist working on creating gender-sensitive rape
examination protocols, Bangalore, May 12, 2010. They were in discussions with
doctors from Delhi hospitals who felt that doctors were being unfairly blamed
when actually lawyers and judges called upon them to comment about the test.

[105]
Human Rights Watch interview with Justice Manju Goel, a former sessions judge
and high court judge, New Delhi, May 15, 2010.

[106]
See for example, Ratan Acharjee v. State of Tripura, MANU/GH/0120/2008,para. 18, where while considering whether a 17 year-old rape
survivor’s testimony was credible, the judge noted that her hymen was
intact, she was a virgin, and that a virgin would not depose falsely against
the accused. See also, Vishram v. State of Rajasthan, MANU/RH/0371/2005,
para. 31, where the judge observed that “[t]here is no reason why a
woman, more particularly why a married woman, would falsely implicate the accused-appellant.”

[107]
Human Rights Watch interview with Radha M. (name changed to protect identity),
a former chief public prosecutor, location withheld, May 11, 2010. In Human
Rights Watch phone interview with Dr. Rajat Mitra, director, Swanchetan, New
Delhi, May 25, 2010, Dr. Mitra stated that female survivors of rape above the
age of 12 or 13 are treated with considerable suspicion.

[108]
Given that in practice, judges and defense counsels use the “absence of
injuries” as evidence that no rape took place, in some cases, the
prosecution has used the doctor’s opinion that the rape survivor is “habituated
to sex” to explain the absence of injuries. See for example, Rajesh
Sah v. State of Bihar, MANU/BH/0034/2006.

[110]
Human Rights Watch interviews with Khadijah Faruqui, a lawyer and human rights
activist, Jagori, New Delhi, May 17, 2010; Maharukh Adenwala, a senior
practicing lawyer who has assisted in the prosecution of hundreds of rape and
child sexual abuse cases, Mumbai, May 28, 2010; and Rebecca Mammen John, a senior
practicing criminal lawyer, New Delhi, May 17, 2010; phone interviews with Aparna
Bhat, a lawyer, Rape Crisis Intervention Cell, New Delhi, May 19, 2010 and
Seema V. (name changed to maintain anonymity as requested), a trial court judge
who has served for nearly two decades in different trial courts in Delhi, Delhi,
July 3, 2010.

[114]
Human Rights Watch phone interviews with Seema V. (name changed to maintain
anonymity), a trial court judge who has served for nearly two decades in
different trial courts in Delhi, Delhi, July 3, 2010, and Rebecca Mammen John, a
senior practicing criminal lawyer, New Delhi, May 17, 2010; phone interview
with Aparna Bhat, a lawyer, Rape Crisis Intervention Cell, New Delhi, May 19,
2010.

[115]Musauddin Ahmed v. State of Assam, MANU/SC/1126/2009, para.17. In
this case the prosecutrix was working as a domestic help in a house. She
accused the security guard of the house of rape and the employer of the house
filed a complaint with the police. She stated in evidence that on the day she
was raped, she had also visited the local zoo with another male friend. And
that on her way back she met the accused who hit her male friend and forced her
into an auto, took her to a hotel, and raped her. The defense asked her why she
did not raise an alarm when traveling in the auto or staying at the hotel, to
which the court found that she had not provided an adequate explanation. The
court held that the investigation was poor because the police did not seal and
produce her clothes, no medical samples were tested, and no statement was
recorded from anyone at the hotel.

[116]Hare Krishna Das v. State of Bihar, MANU/JH/0220/2006, para. 13.
See also, State of U.P. v. Dulare, MANU/UP/1148/2005,where the victim
said she was gang-raped. The doctor testified that her hymen had an old tear
and that she was “habituated” to sex. The defense argued that she
had “loose” morals.

[119]Gokul andAtmaram v. State of Madhya Pradesh, MANU/MP/0265/2007,
para. 20. See also, Suresh Govinda Nagdeve and Anr v. State of
Maharashtra, MANU/MH/0780/2008,
where a 15-year-old girl was gang-raped. The doctor wrote that the hymen was
“absent” and recorded that two fingers had passed. The judge
acquitted the accused stating that the medical report did not corroborate the
survivor’s testimony of gang rape, saying that there should have been a
“fresh tear” to the hymen and some injuries.

[120]
Human Rights Watch interview with Meena D. (name changed to protect identity), a
former public prosecutor, New Delhi, May 18, 2010.

[121]
Human Rights Watch interview with Dr. Harish Pathak, a leading forensic
medicine expert, Mumbai, May 10, 2010. The assumption is that the vagina of a
woman who has been subjected to penile penetrative rape would allow the passage
of at least one finger.

[126]
Human Rights Watch interview with Radha M. (name changed to protect identity), a
former chief public prosecutor, location withheld, May 11, 2010. See also, Sudhansu
Sekhar Sahoo v. State of Orissa, MANU/SC/1184/2002, para. 19, where
the court held that “Though the past conduct of the prosecutrix is an
irrelevant matter, in the instant case, Ms. X asserted that she was a virgin
till the alleged incident, but the medical evidence supported by her physical
features revealed that she was habituated to sex.”

[127]
Human Rights Watch interview with Justice Manju Goel, a former sessions judge
and high court judge, New Delhi, May 15, 2010.

[128]
See for example, Teja alias Tejveer Singh alias Tej Pal v. N.C.T.
Govt. of Delhi (State), MANU/DE/2457/2009, paras. 4.11 and 4.12. “P/V
[per vaginum] vagina patulous, admitting two fingers easily…. [doctor]
testified that when the vagina admits two fingers, it can be concluded that the
person concerned is sexually active.” The court eventually acquitted the
accused of raping an adult woman giving him the benefit of doubt regarding
consent.

In Government of NCT Delhi v. Sant Ram
and Ors. MANU/DE/3091/2009, para. 7, the High Court noted that “Further,
PW-18 Dr. Rekha deposed that on local examination hymen of the prosecutrix was
found to be old torn and her vagina was admitting two fingers easily. The court
opined that the prosecutrix was habitual in having sexual intercourse.”
This was one of several factors including a four-day delay in reporting rape
and poor collection of evidence by the police that ultimately led to the acquittal
of the accused. The High Court held that the testimony of the prosecutrix was
not credible, saying that “when two views are possible, the view which
favours the accused persons requires to be adopted in terms of the legal position
which stands well settled.”

In Pint Raj v. State of Himachal Pradesh, MANU/HP/0094/2007,
paras. 4 and 8, where the doctor had stated that the hymen was torn and it
admits two fingers easily. In cross-examination during trial, the doctor
further stated that the hymen tear was “very old.” The defense
argued that since the woman had been “exposed to coitus” before,
there was no proof from the medical evidence that rape had taken place. The
High Court rejected this argument and explained away the easy admission of two
fingers, saying that was so because of the gang rape.

[129]
See section 375 sixthly, Indian Penal Code, 1860: “With or without
her consent, when she is under sixteen years of age.” In 67 of the 153
cases, the survivors were under age 16. In 23 of the 67 cases, the survivors
ages ranged between 8 and 12 years. See for example, Balkar Singh v. State
of Himachal Pradesh, MANU/HP/0272/2009, para. 12. “According to her
[doctor], her [prosecutrix] hymen was ruptured, with old tags, indicating that
she had had her first act of sex long before the alleged incident. Her vaginal
orifice admits two fingers easily, per statement of the said doctor. These
facts indicate that she was used to sexual intercourse.” See also Govind
Shripat Maraskolhe v. State of Maharashtra, MANU/MH/0070/2010; Kamal
Mondal and others v. State of West Bengal, MANU/WB/0454/2006; Virender
Singh v. State of Haryana, MANU/PH/0189/2007.

[130]
All of the 153 judgments that Human Rights Watch analyzed involved a discussion
about the state of the hymen. Many judges do not pay attention to the fact that
the legal definition of rape does not require “penetration” to
break the hymen.

[131]
Human Rights Watch email correspondence and phone interview with Dr. Duru Shah,
a gynecologist and member of the ethics committee of the International
Federation of Gynecology and Obstetrics (FIGO), Mumbai, June 1, 2010. Dr. Shah
told Human Rights Watch that the issue of certifying whether a woman is a
virgin or not had come up for a discussion before the FIGO ethics committee.
Medically, they concluded that “Practitioners asked to provide
certificates confirming women’s virginity will find the state of their
hymens to be inconclusive.” See also, WHO, “Guidelines on
medico-legal care of victims of sexual violence,” pp. 129-132. Since the
hymen undergoes a series of changes starting at puberty, its size, elasticity,
shape, thickness, and sensitivity to pain varies with age (pre-pubertal,
pubertal, post-pubertal) and from one girl or woman to another. According to
the WHO, puberty starts anywhere between ages 8 and 13 (depending on the
child’s general health, nutritional status, socioeconomic, and genetic
factors) and takes several years to complete.

[133]
Human Rights Watch interview with Dr. Nikhil Datar, gynecologist, Mumbai, June
28, 2010; phone interview with Dr. Duru Shah, a gynecologist and member of the
ethics committee of the International Federation of Gynecology and Obstetrics
(FIGO), Mumbai, June 1, 2010.

[134]
Human Rights Watch interview with Dr. Haroon N. (name changed to protect
identity), head of the forensic medicine department of a leading government
hospital, New Delhi, May 18, 2010.

[142]
Human Rights Watch phone interview with Seema V. (name changed to maintain
anonymity as requested), a trial court judge who has served for nearly two decades
in different trial courts in Delhi, Delhi, July 3, 2010.

[144]
Human Rights Watch interviews with Justice Manju Goel, a former sessions judge
and high court judge, New Delhi, May 15, 2010; Florine M. (name changed to
maintain anonymity as requested), former judge, May 18, 2010; Nirmala S. (name
changed to maintain anonymity as requested), former judge, May 18, 2010; Dev D.
(name changed to maintain anonymity as requested), a former public prosecutor, New
Delhi, May 22, 2010; and Rebecca Mammen John, a senior practicing criminal
lawyer, New Delhi, May 17, 2010; phone interview with Asha George, a former
sessions judge and member secretary of the state legal services authority, New
Delhi, May 15, 2010.

[152]
See section 164-A, Criminal Procedure Code, 1973, which states “Medical
examination of the victim of rape.—(1) Where during the stage when an
offence of committing rape or attempt to commit rape is under investigation, it
is proposed to get the person of the woman with whom rape is alleged or
attempted to have been committed or attempted, examined by a medical expert,
such examination shall be conducted by a registered medical
practitioner…. with the consent of such woman or of a person competent to
give such consent on her behalf and such woman shall be sent to such medical
practitioner within twenty-four hours from the time of receiving the
information relating to the commission of the offence.”

[160]
See section 164-A, Criminal Procedure Code, 1973, where it says that consent
should be taken. Human Rights Watch interviews with Maharukh Adenwala, a senior
practicing lawyer who has assisted in the prosecution of hundreds of rape and
child sexual abuse cases, Mumbai, May 28, 2010, and Rebecca Mammen John, a
senior practicing criminal lawyer, New Delhi, May 17, 2010.

[165]State of Uttar Pradesh v. Munshi, (2008) 9 SCC 390, para. 8. In
this case the court did not decide the final outcome of the case. It criticized
the Allahabad High Court for not applying its mind to the appeal and passing a
cryptic order, and sent the matter back to the Allahabad High Court for a fresh
hearing. It nevertheless upheld two points of law – that
“habituation” to sexual intercourse is not relevant and further
that the a conviction on a rape charge can be based solely on the testimony of
the rape prosecutrix if it is reliable.

[177]
Interim Report of the Special Rapporteur to the Commission on Human Rights on
the question of torture and other cruel, inhuman or degrading treatment or
punishment, A/55/290, August 11, 2000,
http://www.un.org/documents/ga/docs/55/a55290.pdf (accessed May 13, 2010), p.
7.

[178]
UN Human Rights Committee, General Comment 16, The right to respect of privacy,
family, home and correspondence, and protection of honour and reputation (Thirty-second
session, 1988), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 (1994), para. 1.

[180]
The United Nations Declaration of Basic Principles of Justice for Victims of
Crimes and Abuse of Power, G.A. A/RES/40/34 (1985), November 29, 1985,
http://www.un.org/documents/ga/res/40/a40r034.htm (accessed May 25, 2010),
para. 4; Report of the Special Rapporteur and independent expert on the right
to restitution, compensation, rehabilitation for victims of gross violations of
human rights and fundamental freedoms, E/CN.4/2000/62, January 18, 2000,
http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/42bd1bd544910ae3802568a20060e21f/$FILE/G0010236.pdf
(accessed May 25, 2010), para. 10.

[181]
The United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, ibid., para. 6(d); Report of the Special Rapporteur and
independent expert on the right to restitution, ibid., para. 10.

[182]
Report of the Special Rapporteur and independent expert on the right to
restitution, ibid.